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JAMES  MADISON'S  NOTES  OF  DEBATES 

IN  THE  FEDERAL  CONVENTION  ON 

A  SOCIETY  OF  NATIONS 


1 


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JAMES  MADISON'S  NOTES 
OF  DEBATES 

IN  THE 

FEDERAL  CONVENTION  OF  1787 

AND   THEIR    RELATION    TO   A    MORE    PER. 

FECT  SOCIETY  OF  NATIONS 


BY 


JAMES   BROWN   SCOTT 

Technical  Delegate   of  thr  United  States  to  the  Second  Hague  Peace 

Conference  ,    Member  of  the   Institute  of  International   Uw  ; 

President  of  the  American  Institute  of  International  Law 


NEW   YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH:  85  West  Knd  Street 
LONDON.  TORONTO.  MELBOURNE.  AND  BOMBAY 

1918 


Copyright,  /giS 
BY  OxFOKu  University  Press 

AMERICAN  BRANCH 


~\^•^^ 


TO 

ARTHUR   DEERIN  CALL 

THIS    LITTLE   BOOK    IS   AFFECTIONATELY 
INSCRIBED 


"  Now  a  new  strain,  a  new  impulse,  the  strain  and  impulse  of  those 
who  build  and  make  good  what  they  have  achieved,  was  upon  the  leaders 
of  the  young  States,  and  they  spoke  their  chastened  thought  like  mas- 
ters." (Woodrow  Wilson,  A  History  of  the  Amerimn  People,  Ch. 
II,  "  Foundinga  Federal  Government,"  Vol.  Ill,  p.  82,  1901.) 


"  What  we  seek  is  the  reign  of  law,  based  upon  the  consent  of  the 
governed  and  sustained  by  the  organized  opinion  of  mankind."  {Presi- 
dent Wilson's  Address  of  July  V,  191S,  delivered  at  Mount  Vernon.) 


■■-1 

'■3P 


PREFACE 

For  years  past  the  writer  of  this  little  book  has 
been  of  the  opinion  that  the  Federal  Convention  of 
the  States  which  formed  the  Constitution  of  the 
Lnited  States  was  in  fact  as  well  as  in  form  an 
international  conference.     For  this  reason  he  is 
firmly  convinced  that  the  proceedings  of  the  Con- 
vention are  therefore  of  interest  in  this  day  of  inter- 
national   conferences,   as    showing  the    steps    by 
which  the  thirteen  States  of  the  western  world 
claiming  to  be  sovereign,  free  and  independent' 
were  able  to  form  the  one  large,  successful  and 
enduring  union  of  States  to  be  found  in  the  annals 
of  history. 

Whether  the  Society  of  Nations  will  care  to 
form  a  more  perfect  union  of  its  members  is  for 
them  alone  to  decide,  but  if  they  should  care  to 
strengthen   the  bonds  that  unite   them   and   con- 
sciously to  form  an  international  organization,  in 
which  the  States  shall  recognize  their  interdepen- 
dence as  well  as  their  independence,  Mr.  Madison's 
iNotes  of  the  proceedings  of  the  Federal  Conven- 
tion  of    1787,    in   which    that   happy   result   was 
achieved,  should  be  mastered  and  the  experience 
of  the  Umted  States  under  the  more  perfect  union 
De  taken  into  consideration. 

In  this  connection  it  may  be  added  that  an  edi- 
tion of  Mr.   Madison's  Notes,  prepared  by  Mr. 


VllI 


Preface 


Galliard  Hunt  and  the  undersigned,  is  in  press,  to 
which  have  been  prefixed  and  appended  the  var- 
ious documents  requisite  for  a  correct  understand- 
ing of  the  nature  and  labors  of  the  gathering,  and 
which  establish  without  argument  or  comment  its 
international  character,  and  its  international  value. 


James  Brown  Scott, 


Washington,   D.  C. 
November   ii,   1918. 


TABLE  OF  CONTENTS 

Quotations  from  Woodrow  Wilson 

Preface         

James  Madison— Tabula  Vitae 

Bibliography  of  the  Notes 

The  Colossal  Task 

A  significant  record  of  a  significant  event 

Scope    of    this    inquiry 

Air.  Madison  and  his  qualifications 

Mr.  Madison's  own  evidence 

His  infinite  patience  and  accuracy 

Origin  of  the  Conference 
The  prevailing  anxiet>' 
Specific   difficulties 

Alternatives 

The  regulation  of  commerce 
Meeting  at  Alexandria 
At    Annapolis        .... 
Call  of  the  Convention 

Accomplishing  the  Impossible 
The  impossible  task 
President  and   Secretary 

Credentials 

Comi"ittee  on   rules  and   orders 
\'ote  by  States       .... 
Election  of  committees  by  ballot     . 
Significance  for  Society  of  Nations 


PARE 

vi 

vii 

XV 

xvii 

I 
I 
i 
4 

5 

7 

13 
13 

i6 
I? 
'7 
i8 

19 

'9 

20 

21 

22 

22 

22 

23 

23 


Table  of  Contents 


General  Interests      .... 

The  more  serious  problems  presented  by  the  Articles  of 

Confederation      .... 
Impotence  of  the  central  authority 
Obvious  reforms  needed 
The  bold   decision 
Kquality  of  States     .... 
Large  and  small  States 
Tlie  basis  for  renunciation     . 

"  Safe  "  

Committee  on  "  Compromise  " 
The  two  e\tremi-s  .... 
The  compromise  on  representation 

Local  Inthrksts  

Slives 

The  commercial  motive 
Again  a  compromise 

Legislature,  E.xecutive,  Juuicl'vrv 
International  Significance  of  the  States  of  the 
Union 

Nation  or  Union  of  States 

Relation  of  States  to  the  Union     . 

"  The  People  " 

Two   overeignties  and  their  relation 

The  Supreme  Law 

The  Society  ok  Nations  anu  the  Union  of  States 

A  court 

Plan  to  coerce  States  rejected 
Coercion  for  individuals  only 
Basis  of  the  Supreme  Law      . 


PAGE 
24 

24 
25 
27 
29 
il 
32 
ii 

34 
35 
36 
36 

38 
38 
40 

42 

44 

46 
46 
47 
48 
4<) 
49 

SI 
SI 

SI 

52 
54 


Table  of  Contents 


XI 


Each  State  with  two  constitutions 

Supreme  Law  of  both  States  and  Union 

Revision  .... 

Constitutionality     . 

Amendments   . 

Secession 

Admission  of  new  States 

Relation-  of  Jlsticjable  to  Political  Questions 
The  unconstitutionalit}'  of  an  act 
Difference  between  judicial  and  political  cases 
How  political  questions  may  become  judicial 

Mr.  Justice  Baldwin 

A  lesson  for  the  Society  of  Nations 
Jurisdiction  by  consent  and  delegated  authorit\ 
A  light  unto  the  world         .... 
The  Judiciary  in  the  Constitutional  Convention 
Again  the  international  significance 
The  more  perfect  Union  or  Societx  of  xN'ations 

Certain  parallels 

Neither  national  nor  federal 
The  preamble  and  its  limitations 
Difficulty   overcome   in    Preamble 
Lines  between  the  States 

The  American-  Union  Interpreted  by  the  Supreme 
Court       

Object  of  the  Constitution 

Ix   Conclusion- 

The  Rising  Sun     .... 
The  Convention   for  the   Pacific   Settlement  of   In- 
ternational   Disputes 


PACE 

57 
58 
59 
59 
59 
59 
60 

61 
62 
66 

67 
68 
70 
72 
73 
76 

79 
80 
82 
83 
84 
80 
88 

89 
89 

94 

96 

97 


Xll 


Table  of  Contents 


Benjamin  Franklin's  forecast 
Madison  and  the  liberty  of  the  world 


Appendix 


The  Declaration  of  Independence,  July  4,  1776 
The  Articles  of  Confederation.    1776-1781 
The  Constitution  of  the  United  States,  1787 


PACI 
98 

99 

lOI 

103 
no 

124 


ILLUSTRATIONS 

Portrait  of  Mr.  Madison Frontispiece 

From  the  original  by  Gilbert  Stuart,  after  the  engrav- 
ing of  H.  B.  Hall,  Jr. 

Facing  Pace 
First  page  of  Mr.  Madison's  manuscript— facsimile  .  i 

Facsimile  reproduction  of  Mr.  Madison's  "  Notes  "  relat- 
ing to  coercion  of  States    . 


Last  page  of  Mr.  Madison's  manuscript— facsimile 


52 

97 


1 


JAMES    MADISON— jT/i^M/fl  Vitae 

Born,  Port  Conway,  King  George  County,  Vir- 
ginia, March  i6,  1751. 

Graduated  at  Princeton,  1771. 
Delegate  to  the  Convention  of  Virginia,  1776. 
Member  of  House  of  Delegates,  1776. 
Member  of  Governor's  Council,  1777. 
Delegate  to  Continental  Congress,  1780. 
Member  of  House  of  Delegates,  1784. 
Member  to  Annapolis  Convention,  1786. 
Delegate  to  Congress,  1787. 
Member  of  Federal  Convention,  1787. 
Member  of  the  Constitutional  Convention  of 
Virginia,  1788. 

Member  of  House  of  Representatives,  1789- 1797. 
Member  of  the  House  of  Delegates  of  Virginia 
1799. 

Secretary  of  State  of  the  United  States  during 
President  Jeflferson's  Administration,    1 801 -1809. 

President  of  United  States,  1809-1817. 

Delegate  to  the  Constitutional  Convention  of 
Virginia,  1829. 

Died.    Montpelier,   Orange   County,    Virginia 
June  28,  1836.  ' 


BIBLIOGRAPHY  OF  MADISON'S  NOTES 

OF  DKBATES  IN  THE  FEDERAL 

CONVENTION  OF  1787 

The  Paper,  of  Jamei  Madison,  purchased  bv  order  of  Contrress-  beine 
his  correspondence  and  reports  of  debates  durinR  the  Congrei. 
of  the  confederation,  and  his  rep.irts  of  debates  in  the  Federal 
Convention;  now  published  from  the  oriKina'  manuscripts,  depos- 
ited in  the  Department  of  State,  by  direction  of  the  Joint  Library 
Committee  of  Congress,  under  the  superintendence  of  Henrv  1) 
O. ipin.  U  ashington.  Langtree  4  O'SuIiivan.  .840.  j  vols.,  fac.im.' 
\ol.  2-3.  Debates  in  the  Federal  Convention  of  1787  Vol  - 
pp.  683-1241;     Vol.  3,  pp.   1243-..  '   "' 

(Some  copies  of  this  edition  have  tf  .mprint  New  York-  I  4  II 
O  Langley.  1841,  and  others  are  dated  Mobile.  18.2. '  Still 
other  copies  were  published  in  Boston.) 

I'nrelfa.^PhSTll*'''  ''''''."'  C"""""""".  '"  'he  Conven- 
tion held  at  Philadelphia,  in  1787;  with  a  diary  of  the  debates 
o  the  ConRres.  of  the  Confederation;  as  reported  by  lame 
Madison.  Revised  and  newly  arranged  by  Jonathan  Klliot  Co". 
Detate,  W  V  ""•  ^"''""'  ^^  Supplementary  to  Elliot's 
fin  .«  ;  .^^"V"'^""'  P'T''  '"'  ""  ^''"°'-  '"45.  xx„.  p.  64.. 
(In  1853  the  plates  passed  into  the  hands  of  J.  B.  Lipp  nco„  4 

J...r^a°ro7  t°he  F^ede'raTr'  "^"•'"  f '"'"''  "'"'  ^'""'''  "'  ''^"  -^l 
Journal  of  the  Federal  Convention  kept  by  James  .Madison.  Reprinied 

vlZfsT  "r"*"'  ""'"^  **"  P"''""'"''  ""J"  dire  tion';  he 
E  H  Scm  "  f°^f7"''!".  '"^^  ""«  ""Ki"'''  manuscripts.  Ed.  bj 
»05  p.  ''"'      "'""'"■  ^'''"«°'  •'^"'"•'  ^'""  *  Co..  ,893 

(Another  edition  was  published   by  Albert.  Scott  4  Co.  in   ,89, 
(Chcago)   issued  a  two  volume  edition.)  ^  ^ 

"igton,  Uept.  of  State,  1900.    904  p. 

Published    as   volume    in    of   the    Documentary    Historv 

6  facsim       ^  ^'      '  ^    '^"'""" "  S°"''  '^'"-     9  vols.,  illu,.. 


Wash- 
of    the 


xviii        Bibliography  of  Madison's  Notes 

Vol.  3-4.   1787.     The  Journal   of  the   Constitutional    Convention 
'902-1903.     Vol.  3-4,  471  p.;  vol.  4,  551  p. 

The  Journal  of  the  Debates  in  the  Convention  which  framed  the  Con- 
stitution of  the  United  States.  May-September,  1787,  as  recorded 
by  James  Madison.  Ed.  by  Gaillard  Hunt.  New  York  and  Lon- 
don, G.  P.  Putanm's  Sons,  1908.    a  vols.,  5  facsim. 

The  Records  of  the  Federal  Convention  of  1787.    Ed.  by  Max  Farrand 
New  Haven,  Yale  University  Press  [etc.,  etc.],  1911.     3  vols. 
Vol.  i-i.    The  Records  of  the  Federal  Convention  of  1787. 


invention. 

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and  Lon- 


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JAMES  MADISON'S  NOTES  OF  DEBATES 
IN    THE    FEDERAL    CONVENTION 
OF     1787     AND     THEIR     RELA- 
TION TO  A  MORE  PERFECT 
SOCIETY  OF  NATIONS ' 


The  Colossal  Task 


^     The  notes  of  debates  in  the  Federal  Convention, 
held  in  the  city  of  Philadelphia  in  the  State  of  a  signifi- 
Pennsylvania,  from  the  25th  day  of  May  to  the  ""* 
17th  day  of  September,  in  the  year  of  our  Lord  "f"''* 
one  thousand  seven  hundred  eighty-seven,  are  notes  eS^""* 
which  James  Madison  of  Virginia,  an  eye  witness  '''"** 
and  active  participant,  made  from  day  to  day,  from 
hour  to  hour,  and  from  minute  to  minute,  of  the 
proceedings  of  that  gathering.     The  Convention 
was  composed  of  official  delegates  of  twelve  of 
tiie    thirteen  "  free,    sovereign    and    independent 
States  '  of  America  forming  an  imperfect  union 
or  loose  league  under  Articles  of  Confederation 
which  articles  had  been  drafted  during  the  war 

«  The  )7^Z'^-':t^"'^''°''"""^''^  "''  ^'°'"  chronologically,  and 


Madison's  Debates  in  Federal  Convention 


of  the  American  Revolution  by  the  delegates  of 
the  thirteen  States  in  the  Continental  Congress,  and 
ratified  thereafter  from  time  to  time  by  their 
respective  legislatures,  and  binding  upon  all  when 
finally  ratified  by  the  last  of  the  thirteen  on  March 
I,  1781.  From  its  origin  and  nature  this  body  of 
official  delegates  was  at  the  time  generally  known 
as  the  Federal  Convention.  It  is  now  popularly 
termed  the  Constitutional  Convention  because  its 
labors  resulted  in  a  Constitution  intended  for  the 
thirteen,  now  binding  upon  the  forty-eight  po- 
litical communities  forming  the  United  States  of 
America.  It  was  thus,  in  inception,  nature  and 
form,  a  conference;  from  the  political  point  of 
view  it  was  an  American,  from  the  geographical 
situation  a  continental,  from  the  international  as- 
pect it  was  an  international  conference.  The 
States  represented  in  this  conference  formed,  it 
may  be  said,  a  group  apart  from  the  Society  of 
Nations  and  held  only  loosely  together  by  their 
common  consent.  They  were  the  product  of  a 
political  philosophy  in  which  the  people  of  each 
State  were  the  source  of  power  within  the  State. 
They  were  separated  by  an  ocean  from  the  Old 
World.  They  had  a  continent  within  which  to 
experiment.  The  experience  of  Europe  was  to 
them  both  a  guide  and  a  warning.  With  no 
obstacles  to  overcome  but  those  of  their  own  cre- 
ation, no  mistakes  to  correct  but  their  own,  they 
were  faced  with  an  opportunity  unusual  as  it  was 
significant.  That  we  of  to-day  know  how  that 
opportunity   was    utilized   is   due    to    the   pains- 


And  a  More  Perfect  Society  of  Nations         3 

taking  care  and  unwavering  devotion  of  James 
Madison. 

Inasmuch  as  this  assembly  was  an  international 
conference— Mr.    Madison    himself    calls    it    a 
"Federal  Convention  "—the   instrument  of  gov-  Scope 
ernment  which  it  framed  and  recommended  to  the  i°q^ 
Congress  and  the  States  for  ratification,  properly 
called  a  Federal  Constitution,  is  an  international 
document.   It  seems  natural,   therefore,   that  we 
should  all  in  this  period  of  international  transi- 
tion be  interested  to  consider  Mr.  Madison  and 
the  manner  in  which  he  took  the  notes ;   to  review 
the  reasons  which  led  the  States  to  appoint  dele- 
gates to  confer  in  Philadelphia;    to  recount  the 
difficulties   met  and   overcome  in  compromising 
adverse  and  outwardly  irreconcilable  interests  on 
the  part  of  the  States;    to  analyze  the  main  pro- 
visions which  the  delegates  in  conference  framed 
for  a  more  perfect  union  of  the  several  States, 
and  to  indicate  in  general  how  the   Society  of 
Nations  can  profit  by  the  labors  of  this  Federal 
Convention.    If  men  be  minded  to  create  a  more 
perfect  Society  of  Nations  and  to  endow  it  with 
agencies  to  carry  into  effect  the  terms  of  their 
agreement,  they  will  be  heartened  by  the  history 
of  these  things,  for,  as  the  venerable  Dr.  Franklin 
said   in  speaking  of  the  Convention,   "We  had 
many  interests  to  reconcile." ' 

The  man  who  took  notes  of  the  debates  of  the 
conference    was    ideally   qualified    for    his    self- 

'Letter  dated  Philadelphia,  October  22,  1787,  from  Benjamin 
Franlchn  to  Mr.  Grand.  (Documentary  History  of  the  Cortstilution 
published  by  the  Department  of  State,  vol.  IV.,   nn.   341-342  ) 


4        Madison's  Debates  in  Federal  Convention 

Mr.  judi-  imposed  task,  for,  while  neither  the  official  Se( 
hit  quaii-    retary  nor  the  designated  reporter  of  the  confei 
cation..    g„ce,  he  was  a  delegate  from  Virginia,  cognizar 
of  the  aims  and  purposes  of  the  gathering  whic 
he,  more  than  any  man  then  living,  had  helpe 
to  bring  about.    As  a  member  from  Virginia  o 
the  Continental  Congress,   acting  under  and   ii 
accordance  with  the  Articles  of  Confederation,  h 
had  learned  to  appreciate  from  practical  exp'eri 
ence  the  defects  of  the  Articles,  to  amend  whici 
the  conference  had  been  called.    He  was  person 
ally  acquainted  with  many  of  the  leading  figure 
of  the  conference,  inasmuch  as  they  had  servet 
together  in  the  Congress,  and  he  was  therefon 
familiar  with  their  style  of  speech  and  mannei 
of  speaking.     Having  abstracted  the  debates  ol 
the  Congress  in  which  they  and  he  had  partici- 
pated,   he  was    already    a    practiced    reporter. 
Added  to  these  personal  and  technical  qualifica- 
tions he  was  deeply  impressed  with  the  impor- 
tance of  the  occasion;    indeed,  he  had  prepared 
himself  by  a  careful  and  elaborate  study  of  the 
defects  of  the  government,  or  rather  the  lack  of 
government  under  the  Articles,  and  his  "  Obser- 
vations "  in  which  he  recorded  his  views  of  those 
defects  is  today  the  most  authentic  and  detailed 
survey  of  the  subject  from  the  pen  of  any  con- 
temporary statesman,  publicist  or  chronicler.    He 
had  further  prepared  himself  for  the  role  which 
he  was  to  play  as  a  delegate  by  a  study  of  al 
known   instances  of  federation   in  so  far  as   the 
scanty  material  then  at  hand  would  permit.     He 


And  a  More  Perfect  Society  of  Nations        5 

had  finally  fitted  himself  for  that  leadership  in 
the  conference  accorded  him  by  his  fellow  dele- 
gates from  the  first  day  of  its  proceedings,  by 
drafting  and  submitting  in  advance  the  nature 
and   scf)pe  of   the  amendments   to   be   proposed, 
and  also  the  "  Plan  "  presented  by  the  delegation 
of  Virginia  which  served  as  the  basis  of  discus- 
sion,  and  which,   modified   in   principle  and   in 
form,  became  the  Constitution  of  the  perfected 
Union.     But  in  addition,  if  indeed  anything  can 
be  added,  he  went  to  the  conference  with  the 
deliberate  intention,  formed  in  advance  and  car- 
ried out  from  day  to  day,  of  recording  the  pro- 
ceedings and  of  taking  down  the  debates  in  his 
system  of  original  shorthand,  in  order  that  future 
students  of  Federal  Government  at  least  should 
have  an  authentic  and  adequate  account  of  the 
Federal  Convention  of  1787. 

We  do  not  need  to  conjecture  as  to  his  inten- 
tions in  these  matters,  to  examine  his  formal 
writings,  to  search  his  personal  correspondence  or  Mr.  Madi- 
to  bring  together  passages  from  diflferent  sources  "rdenT 
in  order  ■  i  establish  these  facts,  as  Mr.  Madison 
has  saved  us  the  trouble  by  stating  it  all  in 
express  language  and  in  detailed  form  in  the 
preface  which  he  himself  prepared  for  the  de- 
bates, from  which  the  following  three  paragraphs 
are  quoted: 

Jnl^l ''"u?''^  ^  ^"^  ^^^^  ^"""'"g  "ly  researches 
into  the  History  of  the  most  distinguished  Con- 
federacies, particularly  those  of  antiquity,  and 
the  deficiency  I  found  in  the  means  of  satisfying 


6        Madison's  Debates  in  Federal  Conventi 


on 


it  more  especially  in  what  related  to  the  proccs 

whirh"n"P  'f"T'^^  ["?"''  ^  ^^^  anticipation; 

which  prevailed  in  the  formation  of  them;  detci 

mined  me  to  preserve  as  far  as  I  could  an  exac 

account  of  what  might  pass  in  the  Conventioi 

whilst  executing  its  trust,  with  the  magnitude  o 

which  I  was  duly  impressed,  as  I  was  with  th, 

gratification  promised  to  future  curiositv  by  at 

authentic  exhibition  of  the  objects,  the  opinion 

&  the  reasonings  from  which  the  new  System  oi 

Oovt.    was    to    receive   its    peculiar    structure   & 

organization.     Nor  was  I  unaware  of  the  valut 

of  such  a  contribution  to  the  fund  of  materials  fo. 

the  H.Story  of  a  Constitution  on  which  would  be 

staked   the  happiness  of  a   young  people  ereai 

VZrl^  X'  '"i'"^^'   ""'^   P^^'^^'y   »he  cause  of 
Liberty  throught  the  world. 

,  /"  P"","^""  ?^  l^^  ^""'^  I  ^3d  assumed  I  chose 
a  seat  in  front  of  the  presiding  member,  with  the 
other  members,  on  my  right  &  left  hand.  In  this 
favorable  position  for  hearing  all  that  passed,  I 
noted  in  terms  legible  &  in  abbreviations  &  marks 
intelligible  to  myself  what  was  read  from  the 
Chair  or  spoken  by  the  members;  and  losing  not 
a  moment  unnecessarily  between  the  adjournment 
&  reassembling  of  the  Convention  I  was  enabled 

^\Zn\ T  "7  "^u'-'y  T^'  ^"'•^"g  the  session  or 
TvlnV  It  finishing  days  after  its  close,  in  the 
extent  and  form  preserved  in  my  own  hand  on  my 

.  f/;./^^  •  j^^'u^""^  correctness  of  this  I  was  not 
wi  h  fL"'.'?  ^y  P'-ft'ce,  and  by  a  familiaritv 
with  the  style  and  the  train  of  observation  and 
reasoning  which  characterized  the  principal 
speakers.  It  happened,  also,  that  I  was  not  absent 
a  single  day,  nor  more  than  a  casual  fraction 
of   an   hour   in   any   day,   so   that   I   could   not 


And  a  More  Perfect  Society  of  Nations         7 

have  lost  a  single  speech,   unless   a  very  short 
one.' 

Nobly    did    Madison    perform    his    mission, 
although  the  labor  involved  would  have  broken 
down  the  resolution  of  a  more  ordinary  person.  ?*'• . 
But,  fortunately,  James  Madison  was  a  determined  patience 
little  man,  set  in  his  ways,  full  of  devotion  to  the  ■"'* 
cause  in   which   his  heart  was   enlisted   and   his  *"""'' 
nation  involved,  and  permeated  with  an  enthusi- 
asm not  sporadic  only,   but   real   and   enduring. 
He  found  the  duty,  for  duty  it  was,  irksome.    In 
a  letter  to  his  friend  Thomas  Jefferson,  of  July 
18,  1787,  when  the  conference  was  in  the  throes 
of   the   struggle  between  the   pretensions  of   the        ' 
big  and  the  claims  of  the  little  States,  in  which 
Mr.  Madison,  as  a  delegate  from  Virginia,  stood 
by  the  big  States,  he  wrote: 

I  have  taken  lengthy  notes  of  everything  that 
has  yet  passed,  and  mean  to  go  on  with  the  drudg- 
ery, if  no  indisposition  obliges  me  to  discon- 
tinue it.° 

And  he  is  reported  to  have  remarked  to  his 
friend,  Edward  Coles,  an  early  and  highly  re- 
spected governor  of  Illinois,  "  that  the  labor  of 
writing  out  the  deba  s,  added  to  the  confine- 
ment to  which  his  attendance  in  Convention  sub- 
jected him,  almost  killed  him:   but  having  under- 

'  Documentary  History  of  the  Constitution,  vol.  Hi.,  pp.  796)1-0  ■ 
Hunt,  IVnttngs  of  James  Madison,  vol.  ii.,  p.  410;  Farrand,  Records  of 
the  federal  Convention,  vol.  iii.,  p.  550. 

'  Documentary  History  of  the  Constitution,  vol.  ir.,  p.  236. 


^ 


8         Madison's  Debates  in  Federal  Convention 

p'liTit"'  ''"''  *"'  "^^^  determined  to  accom- 
^Ir.  Jefferson  in  his  turn,  after  reading  and 
pondering  the  Notes,  wrote  under  date  of  August 
lo,  i«i5,  to  John  Adams,  and  during  Mr.  Mad- 
ison s  term  as  president  of  the  United  States: 

fh?^'''  ^""T"  ^^^^  ^^^'^  exists  in  r  -nuscriDt 
he  ablest  work  of  this  kind  ever  yet  c     -uJed   ?f 

Pw/f'yT-  ^-^   '^^   constitutional   conven"  on   o 
t^i  H?t  •J'"'.'", ' 788  [87]  ?    The  whole  of  every- 
thmg  said  and  done  there  was  taken  down  by  Mr 

p'r'etS^V^'  ^  '^^-  -d  exactness  beyon'd'com- 

^i  John  Adams   did   not  know,  he  doubtless 
usoected  .t,  as  the  members  of  Ihe  corference 
looked  upon  Mr.  Madison  as  its  reporter  even 
If  he  himself  thought  it  best  to  have  the  Notes 
appear  posthumously.  In  any  event,  Mr    Jeffer- 
son s  statement  as  to  Mr.  Madison's  labors  and 
he  accuracy  of  his  manuscript  is  .on...  r,  for  as 
a  reporter  he  spared  no  efforts  to  attain  accuracy 
dunng  ,he   Convention,   and   after  its   adjourn' 

uh.ch  he  noted  upon  reflection  or  rereading 
Thus  ,n  a  letter  dated  New  York,  August  2! 
1789,  although  busied  with  the  organization  of' 
he  government  under  the  Constitution,  he  never 
the  ess  snatched  a  moment  from  his  congressional 
duties  to  dragoon  Edmund  Randolph,  soon  to  be 

^   ^  Jaul  Leicester  Ford.  T,..  Writings  oj  THoma.  J.ff.rson.  vol.  i... 


1 


And  a  More  Perfect  Society  of  Nations        9 

the  first  Attorney  General  of  the  United  States, 
who  had  introduced  'on  behalf  of  his  colleagues 
the  Virginia  plan,  into  furnishing  him  the  notes 
of  his  address  on  that  occasion,  saying: 

I  find  in  looking  over  the  notes  of  your  intro- 
ductory discourse  in  the  Convention  at  Philada. 
that  it  is  not  possible  for  me  to  do  justice  to 
the  substance  of  it.  I  am  anxious  for  particular 
reasons  to  be  furnished  with  the  means  of  pre- 
serving this  as  well  as  the  other  arguments  in  that 
body,  and  must  beg  that  you  will  make  out  & 
forward  me  the  scope  of  your  reasoning.  You 
have  your  notes  I  know  &  from  these  you  can 
easily  deduce  the  argument  on  a  condensed  plan. 
I  make  this  request  with  an  earnestness  wch. 
will  not  permit  you  either  to  refuse  or  delay  a 
compliance.* 

Mr.  Randolph  complied,  and  an  abstract  of 
the  speech  in  his  own  handwriting  is  accordingly 
included   in  the  Notes.   But  we  know  that  this 

'  Documentary  History  of  the  Constituthn,  vol.  v..  p.  192. 

Regarding  the  Virginian  plan,  often  referred  to  as  Mr.  Randolph's, 
because  he  introduced  it  on  behalf  of  the  Virginian  delegation,  Mr. 
Madison  says  in  the  proposed  preface  to  his  Notes: 

"  On  the  arrival  of  the  Virginian  Deputies  at  Philad?  it  occurred 
to  them  that  from  the  early  and  prominent  part  taken  by  that  State 
in  brmging  about  the  Convention  some  initiative  step  might  be  ex- 
pected from  them.  The  Resolutions  introduced  by  Governor  Randolph 
were  the  result  of  a  Consultation  on  the  subject;  with  an  understand- 
ing that  they  left  all  the  Deputies  entirely  open  to  the  lights  of  dis- 
cussion, and  free  to  concur  in  any  alterations  or  modifications  which 
their  reflections  and  judgements  might  approve.  The  Resolutions  as 
the  Journals  shew  became  the  basis  on  which  the  proceedings  of  the 
Corivention  commenced,  and  to  the  developments,  variations  and 
modifications  of  which  the  plan  of  Gov>.  proposed  by  the  Convention 
may  be  traced.  (Documentary  History  of  the  Constitution,  vol.  iii.. 
796»i-B.)  ' 


J' 


lo      Madison's  Debates  in  Federal  Convention 

help  from  the  outside  was  rare,  for  Mr.  Madison 
himself  says  in  his  draft  of  a  preface, 

With  a  very  few  exceptions  the  speeches  were 

TZ  ["'"'k '^'  ""'■  ^^^^^^^'  "«•■  sanctioned    by 
the  speakers,  but  written  out  from  my  notes  aided 

by  the  freshness  of  my  recollections  '      the 

exceptions  alluded  to  vvere,-first,  the  sketch  fur- 
nished by  Mr.  Randolph  of  his  speech  on  the 
introduction  of  his  propositions,  on  the  tvvxnty- 
ninth  day  of  May;  secondly  the  speech  of  Mr 
Hamilton,  who  happened  to  call  on  me  when 
putting  the  last  hand  to  it,  and  who  acknowledged 
Its  fidelity  vyithout  suggesting  more  than  a  very 
few  verbal  alterations  which  were  made;  thirdly 

da'v  orM.v"  T^rr T"[  ^^""'^  «"  *he  second 
day  of  May  July],  which  was  communicated  to 
him  on  a  like  occasion,  and  who  acquiesced  in 
It  without  even  a  verbal  change.  The  Correctness 
of  his  language  and  the  distinctness  of  his  enun- 
ciation were  particularly  favorable  to  a  reporter 
The  speeches  of  Doctor  Franklin,  excepting  a  few 

rlllZl';r"'"   '"P'l^  i''''^   '^'   ^^^'«^"   ones 
read  to  the  Convention  by  his  colleague,  Mr  Wil- 

?ong'^n' h?s^r^"^^"'^"^  '^  '''  ^--  -  --in 

Indeed,  Mr.  Madison's  conception  of  accuracy 
and  of  the  reporter's  dut)'  was  such  as  to  cause 

him     tr\     r>>-oco^..„     .1         •■      .        ., 


him   to  preserve  even   the  little 


nasty"  things 


„    -J      ,     •       ,  .  -    ......w        uaaiy         mings 

said  about  himself,  within  and  without  the  Con- 
vention. Thus  in  the  session  of  July  5th  Mr 
Patterson,  sponsor  of  the  New  Jersey  or  'small 
btate  plan,  acknowledged  that  « the  warmth  [of 


And  a  More  Perfect  Society  of  Nations       1 1 

Mr.  Bedford]  complained  of  was  improper;  but 
he  thought  the  Sword  &  the  Gallows  little  cal- 
culated to  produce  convicfi-.a.  He  complained 
of  the  manner  in  whic'.  M^  M  -  ?^  M-  Gov- 
Morris  had  treated  the  s  la'l  States."  '  It  would 
have  been  so  easy  to  ;  niit  the  Jist  sentence 
altogether,  or  to  leave  only  the  refcionce  to  "  Mr. 
Govr.  Morris,"  who  had  been  the  chief  offender. 
But  this  would  not  have  been  history,  and  the 
"  Mr.  M,"  here  referred  to,  was  dealing  with 
history.  Again,  it  was  only  a  very  honest  man, 
with  a  scrupulous,  indeed  one  might  say,  an 
abnormal  or  extravagant  regard  for  accuracy, 
who  would  record,  preserve  and  add  as  a  note 
to  the  session  of  June  15th,  the  following  remarks 
made  to  him  in  person  by  John  Dickinson: 

You  see  the  consequence  of  pushing  things  too 
far.  Some  of  the  members  from  the  small  States 
wish  for  two  branches  in  the  General  Legislature, 
and  are  friends  to  a  good  National  Government; 
but  we  would  sooner  submit  to  a  foreign  power' 
than  submit  to  be  deprived  of  an  equality  of 
suffrage,  in  both  branches  of  the  legislature,  and 
thereby  be  thrown  under  the  domination  of  the 
large  States.' 

Another  instance  of  Madison's  accuracy  is  the 
note  appended  to  Charles  Pinckney's  speech  in 
the  session  of  June  25th,  for  which  that  young  and 
aggressive  but  able  person  had  carefully  prepared 
himself,   and  which   he  wished   to  have  handed 

^  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  278. 
Documentary  History  of  the  Constitution,  vol.  iii.,  pp.  124-125. 


r^ii 


M 

S3 


f^ 


12       Madison's  Debates  in  Federal  Convention 

down  to  posterity.  The  reporter  included  in  his 
text  the  copy  handed  him,  saying  in  a  note,  "  the 
residue  of  this  speech  was  not  furnished  like  the 
above  by  Mr.  Pinckney.'-  This  otherwise 
trifling  incident  is  important  in  that  Pinckney's 
draft  shows  the  accuracy  of  Mr.  Madison's  tran- 
scription. 

A  careful  examination  of  the  somewhat  elab- 
orate  notes   made   by   Robert  Yates,   a   delegate 
from  the  State  of  New  York,  who,  on  July  loth 
withdrew  from  the  Convention  in  disgust  at  the 
way  things  were  going;  of  the  fragmentary  and 
imperfect  notes  by  Rufus   King  first  published 
in    1894,  Mr.   King  being  a   delegate   from   the 
btate  of  Massachusetts,  but  later  a  distinguished 
resident  of  New  York,  and  of  the  desultorv  and 
scattered  notes  which  have  more  recently 'come 
to  light  of  James  McHenry,  a  delegate  from  the 
^tate  of  Maryland,  on.^   establishes  Mr    Madi- 
son's accuracy,  sets  his  skill  as  a  reporter  hors  de 
concours,  and  confirms  to  the  letter  Mr.  Jeffer- 
son's opinion  "  that  the  whole  of  everything  said 
and  done  there  was  taken  down  by  Mr.  Madison 
with  a   labor  and  exactness  beyond  comprehen- 
sion." 


"  Documentary  History  of  the  Constitution,  vol. 


Ill-,   p.   207. 


And  a  More  Perfect  Society  of  Nations       13 


Origin  of  the  Conference 

The  condition  of  affairs  in  America  on  the  eve 
of  the  conference  filled  many  an  observer  abroad 
with  dismay  and  many  a  citizen  at  home  with  The 
apprehension  lest  the  fair  fruits  of  the  Revolution  anxlet""*^ 
be   lost,   lest  for   example  out  of   the   erstwhile 
colonies,    held    more    or    less    in    check    by    the 
mother  country,  now  States  united  but  not  har- 
monious   under    the    Articles    of    Confederation, 
there  might  emerge  thirteen  sovereign,  free  and 
independent    States    bent    upon    exercising    their 
sovereignty,  freedom  and  independence  after  the 
manner  of  their  elders  if  not  betters  of  Europe. 
There   was    a    profound    and   general    dread    in 
America  of  any  form  of  government  under  which 
the  interest  of  the  one  might  prevail  over  that 
of  the  many,  and  the  common  good  be  sacrificed 
to   the   ambition    of   the    few   strong   enough    to 
satisfy   their   political    ambitions    and    predatory 
appetites.     How  to  make  their  world  "safe  for 
democracy  "  was  as  keen  a  question  then  as  for 
us  now. 

In  the  unfinished  preface  to  the  Notes  written 
some  forty  years  later,  Mr.  Madison  briefly 
touched  upon  the  situation,  which,  indeed,  he 
had  treated  more  fully  in  his  Memorandum  on 
the  defects  of  the  Confederation.  In  the  closing 
days  of  his  life,  certain  conditions,  even  those 
ceasing  to  exist  long  ago,  stood  out  undimmed  by 
age   and    so   important   that   they   could    neither 


H' 


'  t 


14      Madison's  Debates  in  Federal  Convention 

be  overlooked  in  retrospection  nor  left  i  re- 
corded by  this  most  conscientious  of  observers. 
In  respect  to  the  relations  of  the  States  with  one 
another  and  with  foreign  Powers,  he  then  felt 
justified  in  saying: 

At  the  date  of  the  Convention,  the  aspect  & 
Specific  '■^I'^'P^'^i,?^  ?^  P°'-  condition  of  the  U.  S.  could 
difficulties.  "°^  "^^  ""  the  pub.  mind  with  a  gloom  which 
was  relieved  only  by  a  hope  that  so  select  a  Body 
would  devise  an  adequate  remedv  for  the  existing 
and  prospective  evils  so  impressively  demand- 
ing It. 

It  was  seen  that  the  public  debt  rendered  so 
sacred  by  the  cause  in  which  it  had  been  incurred 
remained  without  any  provision  for  its  payment 
Ihe  reiterated  and  elaborate  efforts  of  Cong  to 
procure  from  the  States  a  more  adequate  power 
to  raise  the  means  of  payment  had  failed.  The 
ettect  of  the  ordinary  requisitions  of  Congress 
had  only  displayed  the  inefficiency  of  the  authv 
making  them;  none  of  the  States  having  dulv 
complied  with  them,  some  having  failed  alto- 
gether or  nearly  so;     . 

The  want  of  aiithy.  in  Congs.  to  regulate  Com- 
merce had  produced  in  Foreign  nations  partic- 
ularly ij.  B  a  monopolizing  policy  injurious  to 
the  trade  of  the  U.  S.  and  destructive  to  their 
navigation;     .     . 

The  same  want  of  a  general  power  over  Com- 
merce led  to  an  exercise  of  this  power  separately 
bv  the  States,  wch.  not  only  proved  abortive,  but 
ti^nfc  p'^^/^^^L'  conflicting  and  angry  regula- 
tions. Besides  the  vain  attempts  to  supply  their 
respective  treasuries  by  imposts,  which  turned 
their    commerce    into    the    neighboring      ports 


And  a  More  Perfect  Society  of  Nations       15 

.  .  .  the  States  having  ports  for  foreign  com- 
merce, taxed  &  irritated,  the  adjoining  States, 
trading  thro'  them,  as  N.  Y.  Pena.  Virga.  &  S. 
Carolina.  Some  of  the  States,  as  Connecticut, 
taxed  imports  as  from  Massts.  higher  than  im- 
ports even  from  G.  B.  of  wch.  Massts.  com- 
plained to  Virga.  and  doubtless  to  other  States. 

In  certain  cases  the  Fedl.  authy.  was  violated 
by  Treaties  &  wars  with  Indians,  as  by  Geo.: 
by  troops,  raised  &  kept  up,  witht.  the  consent  of 
Congs.  as  by  Massts.  by  compacts  witht.  the  con- 
sent of  Congs.  as  between  Pena.  and  N.  Jersey, 
and  between  Virga.  and  Maryd.' 

But  these  matters  relate  primarily  to  their 
outward  conduct.  "  In  the  internal  administra- 
tion of  the  States,"  Mr.  Madison  continued,  "a 
violations  of  Contracts  had  become  familiar  in 
the  form  of  depreciated  paper  made  a  legal 
tender,  of  property  substituted  for  money,  of  In- 
stalment laws,  and  of  the  occlusions  of  the  Courts 
of  Justice;  although  evident  that  all  such  inter- 
ferences affected  the  rights  of  other  States,  rela- 
tively Creditor,  as  well  as  Citizens  Creditors 
within  the  States." ' 

And  after  enumerating  instances  of  lack  of  uni- 
formity "in  cases  requiring  it,"  such  as  natural- 
ization, bankruptcy  laws,  and  the  want  of  "  a 
coercive  authority  operating  on  individuals  and 
a  guaranty  of  the  internal  tranquillity  of  the 
States,"  he  drew  the  natural  consequence   from 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  pp.  7961-;. 
'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  796*. 


■  n: 


Alterna- 
tives. 


1 6       Madison's  Debates  in  Federal  Convention 

this  condition  of  the  Union  that  "  the  Fedl.  authv 
had  ceased  to  be  respected  abroad,  and  disposi- 
tions shewn  there,  particularly  in  G.  B  to  take 
advantage  of  its  imbecility,  and  to  speculate  on 
is  approaching  downfall;  at  home  it  had  lost 
all  confidence  &  credit.  The  unstable  and  unjust 
career  of  the  States  had  also  forfeited  the  respect 
&  confidence  essential  to  order  and  good  Govt 
involving  a  general  decay  of  confidence  &  credi't 
between  man  &  man." ' 

In  a  wor-i  the  States  had  patched  up  a  union 
during    the    war   of    independence    in    order    to 
obtain    Its    recognition    by    Great    Britain;     and 
with  the  signing  of  the  treaty  of  peace  on  Sep- 
tember 3,  1783,  between  that  country  and  repre- 
sentatives of  the  United  States,  mentioning  each 
of  the  thirteen  by  name,  and  recognizing  them 
to  be  free,  sovereign  and  independent  States " 
to  quote  from  the  Treat>',  the  politicians  of  the 
day  apparently  lost  interest  in  the  Union  which 
had  served   its  purpose,   and  turned  their  undi- 
vided attention  to  domestic  afifairs  of  their  respec- 
tive States.     If,  however,  the  States  were  to  live 
together,  and  geography  had  done  its  best  to  settle 
that  question  for  them,  they  either  had  to  observe 
the    Articles    of    Confederation,    revising    them 
vvhere    faulty    or    inadequate,    or,    brushing    the 
Articles  aside,  to  settle  by  treaty  the  relations  that 
they  should  sustain  with  one  another. 

The  regulation  of  commerce  which  had  caused 
the  colonies  to  turn  their  backs  upon  the  mother 

'  Documentary  History  of  the  Constituti  n.  vol.  iii..  p.  756*. 


iK 


And  a  More  Perfect  Society  of  Nations       17 

country,  was  destined  to  draw  the  States  together. 
The  State  of  Maryland  owned  the  Potomac  River 
and  claimed  jurisdiction  to  low  water  mark  on 
the  Virginian  shore.  This  was  a  source  of  con- 
tention on  the  part  of  the  larger  commonwealth, 
but  the  Maryland  chTter  was  clear,  or  at  least  so 
clear  that  the  Virginian  men  of  affairs,  lawyers  The 
as  well  as  laymen,  could  not  successfully  contest  of^com'-**" 
the  claim.  Both  States  were  deeply  interested  in  merce. 
Chesapeake  Bay,  into  which  the  Potomac  empties, 
and  which  extends  far  into  Maryland  and  dis- 
charges its  waters  through  Virginia  into  the 
Atlantic  Ocean.  Then,  too,  Pennsylvania,  ad- 
joining Maryland  on  the  north  and  almost  touch- 
ing the  bay  into  which  the  Susquehanna  River 
flows,  and  Delaware,  to  the  east  of  Maryland, 
were  interested  in  any  regulation  of  commerce 
upon  the  bay  and  its  tributaries.  These  familiar 
facts  are  but  a  few  of  the  long  array  of  commer- 
cial difficulties  destined  to  influence  the  course  of 
our  national  growth. 

The  immediate  result  was  that  in  1785  a 
meeting  at  Alexandria  in  Virginia,  of  delegates 
from  Maryland  and  Virginia,  artfully  ente't.dined  Meeting 
at  Mount  Vernon  by  the  great  Washington,  led  **  a^"- 
to  the  suggestion  that  the  States  generally  should 
be  invited  to  consider  in  common  the  regulation 
of  navigation  and  commerce  in  their  common  in- 
terest. 

In  May  of  the  same  year  the  legislature  of  Mas- 
sachusetts, upon  the  recommendation  of  Gover- 
nor Bowdoin,  passed  a  resolution  declaring  inade- 


||. 


I* 


i  i 


-i  \ 

if 


At 


1 8       MadL-n's  Debates  in  Federal  Convention 

quate  the  Articles  of  Confederation  and  calling 
for  a  Convention  from  all  the  States.  But  the 
resolution  never  reached  the  Congress. 

In  the  early  days  of  1786,  the  legislature  of 
Virginia  therefore  appointed  commissioners,  of 
whom  Mr.  Madison  was  one,  to  consider  how  far 
a  uniform  system  of  interstate  commercial  regu- 
lations was  "  necessary  to  their  common  interest 
and  their  permanent  harmony,"  directing  them 
to  invite  the  several  States  to  send  delegates  to  a 
convention  for  that  purpose.  The  first  Monday 
of  September  was  agreed  upon  as  the  time,  and 
the  little  town  of  Annapolis,  then  and  now  the 
Annapoi.5.  capital  of  Maryland,  as  the  place  of  meeting. 

Nine    accepted    the    invitation    and    appointed 
delegates,  but  only  the  representatives  of  five  of 
the  States  appeared.     Under  these  circumstances 
it  did  not  seem  worth  while  for  a  part  to  devise 
regulations  for  the  whole.     The  delegates  there- 
fore wisely  contented   themselves  with   a   report 
of  the  meeting  to  the  States,  signed  by  John  Dick- 
inson as  chairman,  but  drafted  by  the  deft  hand 
of  Ale.xander  Hamilton.'     They  sent  a  copy  ro 
the  Congress  for  its  information  and  action,  and 
recommended   the   appointment   of   delegates   of 
the  States  to  meet  in  Philadelphia,  on  the  second 
Monday  in  May  of  the  ensuing  year,   in  order 
to  revise  the  articles  of  Confederation.     Virginia 
put  itself  in  touch  with  the  States,  urging  them 
to  comply  with  the  recommendation. 
The  Congress  ultimately  approved  the  plan,  in- 

^  Documentary  History  of  the  Constitution,  vol.   i.,  pp.   1.5. 


And  a  More  Perfect  Society  of  Nations       19 

fluenced,  no  doubt,  by  acts  of  rebellion  in  Massa- 
chusetts against  the  government  of  that  State  and 
by  the  fear  of  similar  outbreaks  in  other  States; 
and  the  Convention  was  officially  called  by  the 
Congress,  as  stated  in  its  resolution  of  February 
21,  1787,  for 

the   sole    and    express    purpose    of    revising    the 
Articles  of  Confederation,  and   reporting  to  the 
Congress  and  the  several  legislatures,  such  alter-  Call  of 
ations    and    provisions    therein,    as    shall,    when  '***  9°"' 
agreed   to    in   Congress,    and    confirmed    by    the  **"*'°" 
States,  render  the  Federal  Constitution  adequate 
to  the  exigencies  of  Government,  and  the  preser- 
vation of  the  Union.' 

All  of  the  thirteen  States,  with  the  exception 
of  the  pigmy  commonwealth  of  Rhode  Island 
and  Providence  Plantations,  appointed  delegates 
to  meet  at  the  time  and  the  place  fixed  for  the 
meeting,  and,  as  the  world  knows,  the  Articles  of 
Confederation  were  revised  with  a  vengeance  by 
throwing  them  overboard  the  Ship  of  State  and 
by  drafting  a  scheme  of  government  adequate  to 
the  needs  of  the  States,  uccause  based  upon  their 
experience  both  as  colonies  and  as  States. 


ACCOMPLISHIXC.  THE  IMPOSSIBLE 

The  second  Monday  of  May,  1787,  fell  upon 
the  14th,  but  on  that  day  only  two  delegations  ap- 
peared at  Philadelphia,  the  Pennsylvanian,  which 
could  not  well  fail  to  be  on  hand,  and  the  Vir- 

'  Documentary  History  of  the  Constitution,  vol.  i.,  p.  8. 


20       Madison's  Debates  in  Federal  Convention 
ginian  group  with  the  punctual  Washington  at 

ilfoMibie  '^^  ^^^^'     ^^  ^^^*  ""^  ""'^^  Friday,  the  25th  of 
.mpoM,  e  ji^g  month,  when  the  delegates  of  seven  States, 

that  is,  a  majority    »f  the  thirteen  then  forming 
the  Union,  appeared  and  convened  in  the  very 
city  and  stately  building  vhcre  eleven  years  pre- 
viously   the    Declaration    of    Independence    had 
been    approved,   proclaimed,    and   signed.     The 
place  and  the  hour  were  big  with  possibilities  for 
the  future.    What  was  to  take  place?    Chastened 
by  the  experience  of  eleven  years  of  anxiety  and 
apprehension,  what  would  the  conference  bring 
forth?    Could  the  States  possibly  create  and  main- 
tain a  more  perfect  union  based  upon  the  separa- 
tion of  the  powers  of  both,  and  upon  the  recogni- 
tion of  the  interdependence  of  each?    It  seemed 
impossible.     Nevertheless  the  fifty-five  delegates 
to  the  Convention,  of  which  Thomas  Jefferson 
said  with  pardonable  exaggeration,  "  it  is  really 
an    assembly   of   demigods " '—accomplished    the 
impossible   by  good  will,   concession,   and   com- 
promise.   And  yet,  three  of  the  members  present 
at  the  signing  of  the  Constitution,  Messrs.  Mason 
and    Randolph   of  Virginia,   and   Mr.   Gerry  of 
Massachusetts,  refused  to  add  their  names  to  those 
of  their  thirt>'-nine  colleagues,  although  that  doc- 
ument owed  very  much  to  their  labors. 

This  Federal  Convention  was,  as  already  stated, 
an  international  conference,  and  as  such  it  would 

.     I  u'^'^',"^  Thomas  Jefferson,  dated  Paris.  Aug.  30.  1787.  addressed 
to  John  .Adams.     {Documentary  History  of  the  Constitution,  vol.  iv 
p.  266.) 


i 
1 


/InJ  a  More  Perfect  Society  of  Nations       21 

have  been  opened  in  person  by  the  venerable  Ben- 
jamin Franklin,  then  President  of  the  common- 
wealth of  Pennsylvania,  who  "  alone  could  have 
been  thought  of  as  a  competitor  "  and  who  would 
have  proposed  George  Washington,  of  Virginia, 
as  its  President,  had  not,  as  Mr.  Madison  informs 
us,  "the  state  of  the  weather  and  of  his  health 
confined  "  the  illustrious  Pennsylvanian  "  to  his 
house." '  As  it  was,  Robert  Morris,  senior  mem- 
ber of  the  Pennsylvanian  delegation,  in  his  ab- 
sence, made  the  motion,  seconded  by  John  Rut- 
ledge  of  South  Carolina,  and,  upon  ballot  taken. 
General  Washington  was  found  to  be  unanimously 
elected,  as  he  had  been  chosen  Commander  in 
Chief  of  the  Revolutionary  Army  by  the  Con- 
gress, and  as  he  was  twice  later,  and  because  of  President 
the  Convention,  to  be  elected  President  of  the  ^^^^^^^ 
United  States.  After  a  few  words  from  the  '"**"^' 
nevviy  elected  President,  modestly  disclaiming 
merit  on  his  part,  as  was  his  wont,  and  as 
appears  to  be  also  the  custom  in  international 
conferences,  Mr.  Wilson,  next  in  rank  in  the 
Pennsylvanian  delegation,  rose  and  proposed  for 
Secretary,  William  Temple  Franklin,  grandson  of 
the  great  doctor;  then  "Colonel,"  as  Mr.  Madi- 
son calls  him,  but  Alexander  Hamilton  as  we  of 
today  would  say,  proposed  a  companion  in  arms, 
one  Major  William  Jackson.  A  ballot  was  taken, 
the  States  divided  five  to  two  against  the  grand- 
son, and  the  Major  was  declared  elected — a  bad 
choice,   be   it   said,   with    due   deference    to    the 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  9. 


fr  I' 


»i 


f       ^ 
,  1 


Creden- 
tials. 

Commit- 
tee on 
rules  and 
orders. 


Vote  by 
States 


22       Madison's  Debates  in  Federal  Convention 

Colonel,  his  sponsor,  and  the  five  States  that 
voted  for  him.  For  if  we  are  to  judge  by  the 
Major's  journal,  as  we  must  in  the  absence  of 
the  notes  of  the  proceedings  which  he  claims 
to  have  taken,  but  which,  mislaid  or  lost,  have 
disappeared  without  a  trace  of  their  e.xistence,  the 
official  Secretary's  services  left  not  a  little  to  be 
desired. 

The  Convention  now  had  an  efficient  President 
and  a  titular  Secretary.     The  credentials  of  the 
delegates  of  the  several  States  and  the  instructions 
contained    in    them,    were    read,    whereupon   the 
Convention  was  organized  and  in  session.    Other 
details  were   promptly  arranged.     A  committee 
was   appointed  "  to  prepa  e  standing   rules   and 
orders,"  and  the  Convention  adjourned  from  Fri- 
day, the  25th,  until  Monday,  the  28th,  to  allow 
the  committee  to  meet  and  prepare  its  report.    At 
the  session   of  the   28th   the  committee   reported 
and,  with  an  amendment  and  an  addition,  the  rules 
were  adopted  by  virtue  whereof  each  State  had, 
as  under  the  Articles  of  Confederation,  one  vote 
irrespective  of  the  number  of  the  delegates,  and 
the  votes  of  the   States  were   recorded,   not  the 
names  of  the  delegates  casting  them.     "  A  house 
to   do   business,"    to   quote    Mr.    Madison's    lan- 
guage, consisted  "  of  the  deputies  of  not  less  than 
seven  States";  all  questions  were  to  "be  decided 
by  me  greater  number  of  these  which  shall  be 
fully  represented,"  but  a  smaller  number  could 
adjourn  from  day  to  day.' 

'Documentary  History  of  the  Constitution,  vol.  iii.,  p.   n. 


And  a  More  Perfect  Society  of  Nations       23 

Committees  were  to  be  elected  by  ballot,  and 
they  were  noi  to  sit  while  the  Convention  was  in 
session,  as  the  attendance  of  all  at  the  general 
meetings  was  deemed  desirable.  It  was  further 
provided  that  nothing  spoken  was  to  be  printed 
or  otherwise  published  or  communicated  without 
leave.  Such  were  the  main  features  of  the  Con- 
vention's organization. 

These  are,  it  will  be  observed,  the  methods 
of  an  international  conference,  with  the  differ- 
ences only  that  nominations  were  to  be  made  and 
decided  by  ballot,  not  by  a  silence  that  is  held 
to  betoken  assent,  and  that  resolutions  or  pro- 
posals were  to  be  adopted  by  a  majority  instead 
of  by  the  unanimous  vote  of  all  the  States.  But 
it  is  not  unreasonable  to  believe  that  future  in- 
ternational conferences  may,  both  as  to  election  by 
ballot  and  to  adoption  by  majority,  profit  by  the 
experience  of  the  Federal  Convention,  which  is 
to  date  the  only  international  conference  whose 
labors  have  stood  the  test  of  time  and  of  criti- 
cism. This  seems  probable  because  self-respect- 
ing States  can  not  be  expected  to  have  the  larger 
States  organize  the  conference  by  prearrangc- 
ment  without  consulting  the  delegates  of  the  less 
powerful  nations,  and  because  it  may  prove  unde- 
sirable to  continue  the  unanimity  rule  when  no 
State  is  bound  by  its  vote  in  conference  or  even  by 
the  vote  of  the  conference  except  as  the  state 
signifies  its  own  ratification  after  formal  sub- 
mission of  the  project  for  separate  approval  or 
disapproval.     But  the  point  to  be  borne  in  mind 


Election 
of  com- 
mittees b> 
ballot. 


Signifi- 
cance for 
Society  of 
Nation!. 


t' 


#  I: 


i 


n 

"I  I 


i!! 


The  more 
serious 
problems 
presented 
by  the 
Articles 
of  Confed- 
eration. 


24       Madison's  Debates  in  Federal  Convention 

—a  theme  to  which  reference  will  frequently  be 
made-,s  that  the  Federal  Convention  of  1787  is 
an  abiding  object  lesson  for  the  student  of  inter- 
national conferences. 

General  Interests 

The  Articles  of  Confederation  provided  for  a 
Lmon  of  the  States,  with  a  Congress  as  its  legis- 
lative and  executive  organs,  so  far  as  the  States 
divested    themselves   of    and    granted    legislative 
functions  to  the  United  States.    No  judiciary   as 
such   was  created,  although  the  Congress  of  the 
Confederation    was    vested    with    the    nower   of 
appointing  courts  for  the  trial  of  piracies  and 
felonies  committed  on  the  high  seas  and  establish- 
ing courts  for  receiving  and  determining  finally 
appeals  in  all  cases  of  captures,"  with  the  power 
of  appointing  temporary  tribunals  or  commissions 
in  all  disputes  and  differences  now  subsisting  or 
that  hereafter  may  arise  between   two  or  more 
btates  concerning  boundary  jurisdiction   or  any 
other  cause  whatever,"  including  "  all  controver- 
sies concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  States  »> 
How  should  the  conference  readapt  the  judiciary 
to  the  new  needs  of  the  new  day? 

But  there  were  other  and  not  less  serious  diffi- 
culties. In  the  Continental  Congress  each  State 
could  be  represented  by  not  less  than  two,  nor 
more  than  seven  delegates,  subject  to  recall,  and 

'  Articles  of  Confederation,  Article  IX. 


And  a  More  Perfect  Society  of  Nations       25 

who  were  to  receive  such  compensation  for  their 
services  as  their  States  might  be  pleased  to  allow. 
But,  irrespective  of  the  number  of  delegates,  each 
State  was  to  have,  and  actually  did  have  only  one 
vote  in  the  Congress,  a  provision  galling  upon  the 
large  States,  but  the  price  of  confederation,  as  it 
was  to  be  the  price  of  the  more  perfect  union  of 
the  Constitution.  The  Articles,  as  a  purely  dip- 
lomatic document,  acted  upon  the  States,  not 
upon  their  citizens,  and  could  only  be  changed  or 
amended  by  unanimous  consent.  Less  important 
measures  required  the  vote  of  nine  States,  and 
during  the  recess  of  the  Congress  a  committee  of 
the  States  sat  to  conduct  affairs,  with  power  to 
transact  such  business  as  nine  States  might  author- 
ize, but  not  to  do  anything  "  for  the  exercise  of 
which,  by  the  articles  of  confederation,  the  voice 
of  nine  States  in  the  Congress  of  the  United  States 
assembled  is  requisite."  ^ 

But  still  more  serious  in   the  exercise  of  the 
powers  specifically  granted  to  the  United  States 
in  Congress  assembled,  of  which  the  States  had  impotence 
divested    themselves,    the    Congress    could    only  central 
recommend  as  it  had  no  way  of  compelling  the  authority. 
States   to   comply.      It  could   not   disregard   the 
State  and  lay  its  hand  upon  the  citizen,  as  in  a 
national  form  of  government.    The  Congress  was 
authorized    to    enter    into    treaties    with    foreign 
countries,  the  States  renouncing  in  behalf  of  "  the 
firm  league  of  friendship  with  each  other  "  ^  the 

'  Articles  of  Confederation,  Article  X. 
'  Articles  of  Confederation,  Article  III. 


ll 


% 


m 


?| 


!( 


26      Madison's  Debates  in  Federal  Convention 

exercise  of  this  right,  possessed  by  them  as  sover- 
eign, free  and  independent  States,'  but  the  Con- 
gress  could   not  enforce   the   observance   of   the 
treaties;  the  States  renounced  the  right  to  form 
treaties,  alliances  or  agreements  between  them- 
selves, but  if  they  did  the  Congress  was  helpless 
to  undo  them;  the  Congress  could  determine  the 
quota  of   troops  to  be  furnished   by  each  State 
which  might  or  might  not  comply,  without  any 
power  on  the  part  of  the  Congress  other  than  of 
persuasion  arising  from  the  needs  of  the  occasion. 
The   Congress  could   determine   the  amount  of 
revenue  to  be  raised  for  general  purposes  to  be 
"  supplied  by  the  several  States,  in  proportion  to 
the  value  of  all  land  within  each  State,  granted 
to  or  surveyed  for  any  person,  as  such  land  and 
the  buildings  and  improvements  thereon";  but, 
as    the    taxes    for    paying    the    proportions    thus 
determined  were  to  "be  laid  and  levied  by  the 
authority   and   direction   of   the    Legislatures   of 
the  several  States,"  it  is  evident  that  the  revenue 
of  the  United  States  would,  in  last  resort,  depend 
upon  the  pleasure  of  the  several  States.'    Attempts 
to   change   the  basis   of   liability   for  quotas    or 
taxes    from    the    value    of    land    to    the    num- 
ber   of     inhabitants     or    citizens,     to     raise     a 
revenue  by  duties  upon  imports,  and  to  regulate 
commerce  between  and  among  the  States,  failed 
because  of  the  inability  in  each  case  to  obtain 
the  unanimous  consent  of  the  several  States. 

I  Articles  of  Confederation,  Article  II. 
'  Articles  of  Confederation,  Article  VIII. 


And  a  More  Perfect  Society  of  Nations      27 

Without  pursuing  the  subject  further  it  is 
obvious  that  the  conference  must  endeavor  to 
grant  to  the  general  government  the  means  to  Obvious 
make  its  limited  powers  efifective  within  the  "ceded* 
terms  of  the  grants.  The  more  perfect  union 
would  thus  be  empowered  to  raise  the  revenue 
needed  to  carry  on  the  business  of  government,  to 
regulate  navigation  and  commerce.  Besides, 
means  must  be  devised  either  for  coercing  the 
States,  or  for  allowing  the  general  government  to 
reach  the  citizens  of  the  States  directly,  without 
the  intervention  or  agency  of  the  State.  In 
other  words,  some  method  for  dealing  to  the 
extent  of  its  authority  with  citizens  bound  by  law 
and  subject  to  suit,  instead  of  with  States  making 
law  but  immune  from  process,  was  necessary  for 
the  central  government.  The  only  other  recourse 
would  be  war  which,  as  Mr.  Madison  justly  said, 
would  abrogate  the  treaty,  compact  or  agreement. 
It  was  further  obvious  that  in  framing  a  new 
government  for  such  of  the  several  States  as  might 
be  minded  to  ratify  it,  the  delegates  would  natur- 
ally draw  upon  the  experience  which  the  States 
had  had  in  constitution-making  before  and  since 
the  Declaration  of  Independence.  The  govern- 
ment of  the  perfected  union  would  probably  con- 
sist of  a  legislature,  of  an  executive  and  of  a 
judiciary,  authorized  to  exercise  the  powers  to 
the  extent  of  the  constitutional  grant  but  not 
beyond.  This  was  particularly  likely  because  of 
the  threefold  division  of  power  as  embodied  in 
the   Virginian    Bill    of    Rights,    antedating    the 


28      Madison's  Debates  in  Federal  Convention 

Declaration  of   Independence   and   followed    by 
the  other  States,  and  also  because  the  movement 
to   amend   the  Articles   of   Confederation   came 
from   Virginia.      Furthermore,   Virginia's   great 
citizen  was  president  of  the  Convention  and  its 
delegation  was  the  most  influential  delegation  on 
the  floor  of  the  ''House".     It  was  also  to  be 
expected  that  the  judiciary  would  play  a  conspic- 
uous role  in  any  scheme  of  government  which  the 
delegates   might   devise,    for   without   a   '^entral 
judiciary  every  treaty  might  conceivably  receive 
thirteen    diflferent    interpretations,    as    the    treaty 
was  the  law  of  each  of  the  States  and  subject  as 
such  to  interpretation  by  the  court  of  each  State. 
Separate  coordinate   State  courts  might  present 
the  spectacle  of  any  one  act  of  the  general  legis- 
lature, binding  the  State  and  its  citizens,  being 
interpreted  and  applied  in  thirteen  diflferent  ways. 
^^  Again    it  was    certain   that   the    States   styled 
"sovereign,  free  and  independent"  in  the  Arti- 
cles of  Confederation  would  only  consent  to  the 
renunciation  of  specified,  enumerated  powers  of 
a  general  nature,  belonging  more  appropriately 
to   the   general   government   than   to   any   State. 
Such  a  limited  renunciation  in  the  common  inter- 
est of  the  several  States,  rather  than  in  the  interest 
of  any  one  or  of  any  group  thereof,  seemed  neces- 
sary.    But  it  was  apparent  throughout  thut  they 
intended  to  reserve  or  retain  for  themselves  all 
powers  which  they  did  not  consent  to  grant  to 
the  government  of  the  Union.     Further  it  was 
to  be  anticipated  that  the  Constitution  would  be 


,1!*' 


And  a  More  Perfect  Society  of  Nations       29 

subject  to  amendment,  as  experience  had  shown 
the  necessity  of  amending  the  Articles,  and  that 
the  Amendments,  not  too  easily  adopted,  would 
yet  be  made  by  less  than  the  unanimous  vote  of 
the  States.  And,  finally,  it  must  have  been  fore- 
seen that  the  struggle  begun  in  Congress  between 
the  large  and  the  small  States,  the  small  claiming 
equality  of  right  with  the  large,  would  make  its 
appearance  in  the  Convention,  and  that  the  States 
or  sections  would  stand  out  for  their  special  or 
sectional  interests;  that  navigation  and  commerce 
in  the  eastern  carrying  and  trading  States,  and 
that  the  sluvc  trade  and  property  in  slaves  in  the 
Southern  States  for  example,  would  all  demand 
attention.  In  other  words,  it  was  in  the  nature  of 
things  that  the  Constitution,  if  drafted,  would 
have  to  be  a  creature  of  concessions  in  the  rela- 
tions of  the  large  and  the  small,  and  of  com- 
promise in  the  matter  of  local  or  sectional  inter- 
ests of  the  peoples  of  the  States. 

But  before  taking  up  the  proceedings  of  the 
conference  on  these  various  matters,  it  is  well  to 
premise  that,  on  the  very  day  on  which  the  con- 
ference resolved  itself  into  a  Committee  of  thv 
Whole,  May  30,  1787,  the  day  after  Mr.  Randolph 
had  "  opened  the  main  business "  with  his 
address  on  behalf  of  the  Virginian  delegation 
and  in  justification  of  its  plan,  the  delegates  made  ^he  bold 
the  bold  decision  of  postponing  the  proposition  to 
amend  the  Articles  of  Confederation  by  adopting 
the  motion  *'  that  a  national  Government  ought  to 
be  established,  consisting  of  a  supreme  legislative. 


decision. 


I    . 


30       Madison's  Debates  in  Federal  Convention 

executive  &  judiciary."  In  the  light  of  the 
resolution  adopted  by  the  Congress  limiting  the 
Convention  to  a  revision  of  the  Articles  of  Con- 
federation, and  in  w'xtvf  of  the  instructions  of  the 
several  States  to  their  respective  delegates  to  the 
same  eflfect,  this  was  indeed  a  decision  bold  as  it 
was  momentous.  It  is  easy  to  justify  this  act  of 
the  Convention  from  the  technical  point  of  view, 
in  that  its  draft  of  a  Constitution  was,  in  form 
and  in  effect,  merely  a  recommendation  to  the 
States,  to  be  accepted  or  rejected  by  them  in  the 
exercise  of  their  sovereign  discretion;  but  perhaps 
the  best  justification  is  that  of  President  Wash- 
ington, who  remarked:  "If  to  please  the  people, 
we  offer  what  we  ourselves  disapprove,  how  can 
we  afterward  defend  our  work?  " ' 

This  action  of  the  Convention  could  only  mean 
that  the  Union  of  the  States  was  indeed  to  have 
a  government  adequate  to  its  needs.  It  should  be 
said,  however,  in  this  connection,  that,  in  the 
course  of  subsequent  proceedings,  the  word  "  na- 
tional "  was  unanimously  struck  from  the  phrase 
"national  government"  on  the  motion  of  Mr. 
Ellsworth  of  Connecticut  that  the  government  to 
be  established  should  be  not  a  national  govern- 
ment, as  originally  proposed  by  Mr.  Randolph 
and  approved  by  the  partizans  of  what  was  then 
called  consolidation,  but  "  a  government  of  the 
United  States,"  to  consist  of  the  threefold  divi- 


'  Gouverneur  Morris,  In  oration  upon  the  Death  of  General  If^as/i- 
tngton  p.  21;  delivered  in  New  York,  December  31,  1799  (FarramI, 
Records  of  the  Federal  Convention,  vol.  iii.,  382.) 


And  a  More  Perfect  Society  of  Nations       31 

sion,  which,  in  Mr.  Ellsworth's  view  and  ap- 
parently in  that  of  the'  Convention,  was  the 
proper  title.  But  by  the  terms  of  the  resolution 
adopted  by  the  conference  at  the  first  session  of 
the  Committee  of  the  Whole,  it  was  apparent  that 
the  delegates  proposed  to  ignore  their  "  instruc- 
tions "  and  to  "  revise  "  the  Articles  of  Confed- 
eration by  supplanting  them. 

The  matter  of  the  equality  of  States  came  up 
before  the  opening  of  the  Convention  and  was  only 
got  out  of  the  way  by  concession  from  both  sides 
in  July.  The  questions  involving  local  interests 
were  settled  only  in  the  closing  days  of  the  con- 
ference. These  two  sets  of  difficulties,  seemingly 
insurmountable  then,  are  still  peculiarly  signifi- 
cant to  international  conferences.  Agreement 
on  all  other  matters,  essential  to  the  organization 
of  the  government  of  the  Union,  was  found  to  be 
comparatively  easy  on  the  principle  of  give  and 
take,  a  principle  which  is  also  the  very  life  and 
breath  of  any  international  conference.  The  two 
issues,  equality  and  local  interests,  were  so  acute 
that  they  will  be  considered  in  some  detail  before 
proceeding  to  an  analysis  and  appreciation  of 
the  international  document  which  we  call  the 
Constitution. 

Mr.  Madison  tells  us  somewhat  casually,  and  in 
a  note  of  later  date  which  he  appended  to  the 
completed  manuscript  of  the  Session  of  May  28th,  Equality 
that  "  previous  to  the  arrival  of  a  majority  of  the  °^  ^*"*** 
States,   the    rule   by  which    they   ought   to   vote 
in    the    Convention  had    been    made    a    subject 


■r 


4 

a. 


Large 

and 

small 

States. 


32       Madison's  Debates  in  Federal  Convention 

of  conversation  among  the  members   present".' 
Gouverneur  Morris,  Robert  Morris,  and  others 
from      Pennsylvania— Massachusetts,       Pennsyl- 
vania,    and     Virginia     were     then     the     large 
States— were    of    the    opinion    that    they    should 
unite   in   denying  an    equal   vote   "as   unreason- 
able,   and     as    enabling    the    small    States    to 
negative  every  good  system  of  Government,"  pro- 
posed, of  course,  by  the  large  for  the  benefit  of 
the  siaall  States,  "which  must  in  the  nature  of 
things,"  according  to  the  views  of  the  large  States, 
''be   founded   on   a   violation   of   that  equality." 
Mr.  Madison  was  strongly  in  favor  of  the  equal 
rights  of  the  great  States,  as  delegates  of  great 
States  usually  are,  and  believed,  no  doubt  hon- 
estly, that  the  claim  of  the  small  States  to  an 
equality  of  vote  was  preposterous,  much  as  Bishop 
Horsley  was  pleased  to  assert  that  the  only  inter- 
est the  people  had  in  laws  was  "  to  obey  them  " ' 
But  he  recalled  the  inability  of  the  Continental 
Congress  to  adopt  any  other  principle  than  that 
of  equality  in  the  matter  of  representation  in  the 
very  Articles  which  the  conference  was  called  to 
amend. 

At  least  Messrs.  Washington  and  Madison,  of 
the  Virginian  delegation,  were  practical,  hard- 
headed  men,  and  they  were  set  upon  getting  the 
most    effective    general    government   to    be    had. 

ma.,  of  the  n.  .T    •  '    °^    ^"'^^^^'"'    '  <lid    not    know    what    ,1,.. 

Xv    them  •"'^  %       tk""-'  """"'^'  ''•'"'   '"  'I"  "'■«''  'he   law.,   but  ,0 

r„WW    Hollnl  1"   I     ""'^   ^-"""^   '''">■•    ^"""-""ional  History  „i 
i^ngiana.  Hollands  edition,  1912,  vol.  ii.,  p.  55.)  '^ 


And  a  More  Perfect  Society  of  Nations      33 


without  breaking  up  the  Convention  at  the  out- 
set. They  apparently  'possessed  the  hope  that 
intimate  association  with  the  delegates  of  the 
larger  States  would  impress  the  other  delegates 
with  their  superior  wisdom  and  reasonableness. 
However  that  may  be,  "  the  members  from  Vir- 
ginia," Mr.  Madison  says,  "conceiving  that  such 
an  attempt  might  beget  fatal  altercations  between 
the  large  &  small  States,  and  that  it  would  be 
easier  to  prevail  on  the  latter,  in  the  course  of  the 
deliberations,  to  give  up  their  equality  for  the 
sake  of  an  effective  Government,  than  on  tak- 
ing the  field  of  discussion,  to  disarm  themselves 
of  the  right  &  thereby  throw  themselves  on  the 
mercy  of  the  large  States,  discountenanced  & 
stifled  the  project."* 

The  Virginian  plan  of  taking  the  little  ones 
in  hand  and  bringing  them  to  reason  did  not  and 
could  not  work,  as  the  small  States,  like  the  large.  The  basis 
were  only  willing  to  renounce  a  right  in  the  inter-  ^°'  "nun- 
est  of  the  whole,  not  in  the  interest  of  any  group 
other  than  their  own,  and  then  only  when  the 
renunciation  seemed  to  them  "  safe,"  of  which 
each  of  the  States  was  to  judge. 

This  was  very  bluntly  expressed  during  the  grill- 
ing process  to  which  the  small  were  put  by  the 
large  States,  which  could  neither  be  considered 
their  elders  nor  their  betters,  and  it  is  recorded  by 
Mr.  Madison,  whose  honesty  as  a  reporter,  be  it 
again  said,  is  even  more  astonishing  than  his  skill, 
in  the  summary  of  his  long  and  comprehensive 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  lo,  footnote. 


^ 


ciation. 


"  Safe." 


•'.' 


34      Madison's  Debates  in  Federal  Convention 

address  in  the  session  of  June  19th,  which  he  no 
doubt  hoped  would   "  prevail "  upon  the  small 
btates,  "  in  the  course  of  the  deliberations,  to  give 
up  their  equality  for  the  sake  of  an  effective  Gov- 
ernment."     Mr.    Madison,    as    reported    in    his 
Notes,  said  that  "  the  great  difficulty  lies  in  the 
affair  of   Representation;   and   if  this  could  be 
adjusted,    all   others   would    be   surmountable"^ 
Nothing   could    be    truer,    as    the    event   amply 
demonstrated.      Mr.    Madison    then    continued: 
It  was  admitted  by  both  the  gentlemen  from  N 
Jersey  [Mr.  Brearly  and  Mr.  Paterson]  that  it 
would  not  be  just  to  allow  Virga.  which  was  16 
times  as  large  as  Delaware  an  equal  vote  only."" 
In  the  abstract  they  may  have  been  right,  but 
the  admission  did  not  show  any  marked  conver- 
sion to  the  "  reasonable  "  point  of  view  of  the 
large  States,  inasmuch  as,  according  to  Mr.  Mad- 
ison, "their  language  was  that  it  would  not  be 
safe  for  Delaware  to  allow  Virg?   16   times   as 
many  votes." ' 

That  was  the  crux  of  the  question  and  the  solu- 
tion was  brutally  stated  by  Mr.  or  General  Pinck- 
ney,  for  there  were  two  delegates  of  that  name 
from  South  Carolina,  when,  in  the  session  of 
June  6th,  one  or  the  other  of  them  said— Mr 
Madison  ascribing  the  remark  to  the  Mister  Mr 
Yates  to  the  General-:  "  The  whole  comes  to  this 
•    •    .  Give  N.  Jersey  an  equal  vote,  and  she  will 

\rh,amen,ary  History  of  the  Constitution,  vol.  iii..  p.  ,60 
Documrnlary  I  .story  of  the  Constitution,  vol.  iii.  l.  \t 
Documentary  ll.slory  of  the   Constitution,  vol.   Iii     p    .«  ' 


r! 


tee  on 

"Ccm- 
promiM.' 


And  a  More  Perfect  Society  of  Nations      35 

dismiss   her  scruples,   and    concur    in    the   NatJ 
system." ' 

The  Convention  having  come  to  a  standstill—  Commit- 
"  We  are  now  at  a  full  stop,"  to  use  the  homely 
but  expressive  language  of  Mr.  Sherman  '  of  Con- 
necticut—and in  response  to  a  general  feeling 
that  *'  Something  must  be  done,  or  we  shall  dis- 
appoint not  only  America,  but  the  whole  world," 
to  quote  Mr.  Gerry"  of  Massachusetts,  the  great 
and  good  General  Pinckney  proposed,  at  the  very 
same  session  of  July  2d,  in  which  these  remarks 
had  been  made,  but  before  they  were  uttered,  that 
"a  Committee  ...  be  appointed  to  devise  & 
report  some  compromise,"  to  consist  of  a  member 
from  each  of  the  eleven  States  represented,  as  two 
of  the  three  delegates  from  New  York  had  with- 
drawn, and  the  delegates  from  New  Hampshire, 
although  appointed,  had  not  yet  arrived.* 

There  was  a  way  out,  and  it  was  found  not  by 
any  one,  but  by  the  collective  wisdom  of  the  con- 
ference, as  so  often  happens.  To  Mr.  xMadison 
and  to  many  the  question  seemed  to  be  as  he  had 
put  it  in  the  session  of  June  20th: 


I 

''m 
■m 


"•♦1* 


'Documentary  History  of  the  Constitution,  vol.  iii.,  p.  136. 

It  is  immateriai  whether  Mr.  Pinckney  or  Nfr.  C.  C.  Pinckney— that 
IS  to  say,  the  General— made  the  above  remark,  and  it  is  only  noted 
in  passmR  as  showing  Mr.  Madison's  accuracy  in  substance  if  not 
always  in  form.  Thus  Robert  Yates,  a  delegate  from  New  York 
recounts  the  incident:  "Mr.  C.  C.  Pincknev  supposes  that  if  N-Jersey 
was  indulged  with  one  vote  out  of  13,  she  would  have  no  objection 
to  a  national  government."  (Secret  Proceedings  and  Debates  of  the 
Federal  Convention,  p.  127,  published  in  1821.) 

'^Documentary  History  of  the  Constitution,  vol.  iii.,  p.  264. 

^  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  269. 
Documentary  History  of  the  Constitution,  vol.  iii.,  p.  264. 


I; 


36      Madison's  Debates  in  Federal  Convention 


The  two 
txtretnct. 


The  com- 
promise 
on  Repre- 

■ertation. 


-'/ 


In  a  word;  the  two  extremes  before  us  are  a 
perfect  separation  &  a  perfect  incorporation,  of 
the  13  States.  In  the  first  case  they  would  be 
independent  nations  subject  to  no  law,  but  the 
law  of  nations.  In  the  last,  they  would  be  mere 
counties  of  one  entire  republic,  subject  to  one 
common  law. ' 

In  fact,  the  compromise  was  very  simple.  As 
the  legislature  was  to  consist  of  two  branches  the 
small  States  conceded  representation  proportioned 
to  the  population  of  each  State  in  the  lower 
branch  of  the  legislature,  called  therefore  the 
House  of  Representatives;  the  larger  States  con- 
ceded equality  of  representation  in  the  upper 
house,  called  the  Senate,  in  which  each  State 
should  be  represented  by  two  members  chosen  by 
the  legislatures  of  each  of  the  several  States.  In 
the  lower  house,  each  State  was  to  have  a  member 
for  each  40,ock),  later  reduced  to  30,000,  inhabi- 
tants. In  the  upper  house,  the  members  were  to 
vote  individually,  each  casting  a  vote,  not  one 
casting  the  two  votes  of  the  State,  a  device  appar- 
ently adopted  to  secure  a  vote  for  the  purpose  of 
a  quorum  when  one  or  other  of  the  members  of 
a  State  might  be  absent.  In  addition,  revenue 
bills  were  to  originate  in  the  lower  house,  to  be 
accepted  or  rejected  in  the  upper  house,  a  pro- 
vision ultimately  modified  so  as  to  permit  the 
Senate  to  amend  but  not  originate  bills  of  this 
nature.  Inasmuch  as  a  bill  to  become  a  law 
had  to  pass  both  houses,  the  origin  of  the  bill, 


'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  232. 


And  a  More  Perfect  Society  of  Nations      37 


which  can  be  amended  in  either  house  out  0' 
all  resemblance  to  its  former  self,  was  a  matte, 
of  no  great  consequence  and  was  so  regarded 
by  the  larger  States.  The  truth  is  the  com- 
mittee and  the  conference  were  at  their  wits' 
end  to  devise  something  that  might  seem  to 
be  a  fair  concession  from  each  side,  as  the 
delegates  of  the  big  States  were  genuinely  anxious 
to  save  their  faces  and  the  delegates  of  the  little 
States  were  equally  anxious  to  help  them  in  the 
process. 

They  were  set,  however,  on  preserving  the 
fruits  of  victory  which  they  had  literally  snatched 
from  the  very  jaws  of  defeat.  And,  curiously,  it 
was  Gouverneur  Morris,  who,  on  September  iqth, 
the  last  business  day  of  the  Convention,  as  the  ses- 
sion of  the  17th  was  formal  and  restricted  primar- 
ily to  signing,  moved  to  render  forever  impossible 
the  inequality  of  the  States  under  the  Constitu- 
tion of  the  United  States.  Again,  it  is  the  honest 
Mr.  Madison  who  thus  reports  the  incident,  not 
unmixed  perhaps  with  a  touch  of  retrospective 
irony,  in  connection  with  Article  V,  concerning 
Amendments: 


f 


Ml 


Mr.  Gove'  Morris  moved  to  annex  a  further 
proviso — "  that  no  State,  without  its  consent  shall 
be  deprived  of  its  equal  suffrage  in  the  Senate."* 

And  the  big  State  man  had  the  best  of  reasons 
for  his  eleventh  hour  conversion  to  the  views  of 
the  little  States.     "This  motion,"  Mr.  Madison 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  758. 


38       Madison's  Debates  in  Federal  Convention 

continues,  "  being  dictated  by  the  circulating 
murmurs  of  the  small  States  was  agreed  to  with- 
out debate,  no  one  opposing  it,  or  on  the  question, 
saying  no." ' 


Slaves. 


Local  Interests 

The  leading  and  far-sighted  statesmen  of  Vir- 
ginia were  against  the  slave  trade,  the  existence 
and  extension  of  slavery,  George  Mason  and 
Mr.  Madison  speaking  eloquently  against  it. 
George  Washington,  as  is  well  known,  emanci- 
pated his  slaves,  and  Thomas  Jefferson  never  got 
over  the  omission  from  his  draft  of  the  Decla- 
ration of  Independence  of  the  denunciation  of 
King  George  for  fastening  slavery  upon  the 
colonies. 

The  Northern  States  were  not  in  favor  of 
slavery.  They  would  have  preferred  to  see  it 
wiped  out,  and  the  attitude  of  the  Middle  States 
was  similar.  The  delegates  of  the  Carolinas, 
North  and  South,  and  Georgia,  however,  were 
inexorable.  They  held  that  slaves  were  property 
and  that  they  should  be  recognized  as  such. 

At  the  same  time  the  slave  was  to  figure  as  a 
man  in  estimating  population  and  in  fixing  the 
basis  of  representation  in  the  Congress,  in  accor- 
dance with  the  resolution  of  the  Continental 
Congress  in  the  proportion  of  five  slaves  to  three 
white  men.  But  the  delegates  of  the  slave  States 
were  not  so  anxious  to  have  their  slaves  counted 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  758. 


And  a  More  Perfect  Society  of  Nations       39 


for  purposes  of  direct  taxation,  although  they 
yielded  the  point. 

The  slave  trade  was  to  be  allowed,  or  rather 
it  was  not  to  be  prohibited,  until  1808.  The 
Southern  States  had  already  secured  for  their 
citizens  the  return  of  their  fugitive  slaves  who 
should  escape  to  a  sister  State  in  which  slavery 
might  not  exist,  and  they  made  what  they  were 
pleased  to  consider  a  concession  that  a  tax  or 
duty  not  exceeding  ten  dollars  might  be  laid  upon 
each  slave  imported  from  the  outside  world. 
This,  however,  was  not  enougii;  the  three  States 
insisted  upon  their  right  to  stock  up  with  slaves 
before  the  slave  trade  could  be  stopped,  and  they 
further  demanded  that  the  right  to  do  so  be 
secured  by  a  pro  0  that  the  Constitution  could 
not  be  amended  in  that  particular  prior  to  1808. 

How  did  it  happen  that  the  will  of  the  three 
prevailed  against  the  judgment,  or  at  least  the 
preference,  of  the  majority?  In  this  way.  The 
Eastern  States  insisted  that  Congress  should  have 
the  power  to  pass  laws  affecting  navigation  and 
commerce  by  a  mere  majority,  whereas  the 
Southern  farming  States  depending  upon  the 
exportation  of  their  agricultural  products  and  the 
importation  of  wares  in  return  wished  to  require 
a  majority  of  two-thirds,  as  in  the  case  of  treaties, 
for  the  validity  of  rules  or  regulations  affecting 
navigation  or  commerce.  The  Eastern  States 
were  unwilling  to  confederate  if  the  hands  of 
Congress  were  tied  in  this  matter  and  in  this 
manner;  the  three  Southern  States  were  unwilling 


I 


'%■ 


i 


40       Madison's  Debates  in  Federal  Convention 

to  confederate  unless  the  slave  trade  were  admit- 
ted and  safeguarded.     Politics,  they  say,  make 
queer  bedfellows.     The  Eastern   and   the   three 
Southern  States,  willing  to  sacrifice  the  common 
good  if  need  be  for  their  special  interests,  joined 
forces  with  the  result  that  the  bargain,  for  such 
it  was,  passed  without  a  dissenting  vote  in  the 
matter  of  navigation.     The  bargain  was,  as  will 
presently  appear,  that  Congress  might  pass  laws 
regulating  navigation  and  commerce  by  a  majority 
vote,  and  that  the  slave  trade  might  go  on  for 
twenty  years.    The  delegates  of  the  Northern  and 
Middle  States  saw  in  the  acceptance  of  the  scheme 
the  price  of  union,  and  their  grandchildren  of  the 
North  and  the  South  paid  the  price  of  union  in 
the  best  blood  and  unspeakable  treasure  of  both 
sections. 

The  history  of  the  miserable  compromise  faith- 
fully chronicled  by  Mr.  Madison  should  make 
the  good  people  of  the  North  chary  in  criticism 
I-!."""  °^  ^^^  S°°^  people  of  the  South.  Thus  Mr. 
Gorham  of  Massachusetts,  President  of  the 
Continental  Congress,  and  Chairman  of  the  Com- 
mittee of  the  Whole,  when  the  Convention  met 
in  this  more  informal  manner,  said  in  the  session 
of  August  22d:  "He  desired  it  to  be  remem- 
bered that  the  Eastern  States  had  no  motive  to 
Union  but  a  commercial  one.  They  were  able 
to  protect  themselves.  They  were  not  afraid  of 
external  danger,  and  did  not  need  the  aid  of  the 
Southern  States."'    Again,  in  the  session  of  the 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  59,. 


tnercial 
motive 


^:  i 


And  a  More  Perfect  Society  of  Nations       41 

29th  of  August,  he  recurred  to  the  larger  vote 
to  be  required  in  legislation  affecting  navigation 
and  commerce,  saying  on  this  occasion: 

If  the  Government  is  to  be  so  fettered  as  to  be 
unable  to  relieve  the  Eastern  States  what  motive 
can  they  have  to  join  in  it,  a^d  thereby  tie  their 
own  hands  from  measures  whit  1  they  could  other- 
wise take  for  themselves.  1  t  Eastern  States 
were  not  led  to  strengthen  the  I  nion  by  fear  for 
their  own  safety.^ 

On  their  side  the  delegates  from  the  three  South- 
ern States  did  not  prostrate  themselves  before  their 
brethren  of  the  Northeast.  In  the  session  of  Aug- 
ust 22d,  where  Mr.  Gorham  had  candidly  avowed 
that  the  Eastern  "  did  not  need  the  aid  of  the 
Southern  States,"  General  Pinckney  warned  that 
the  delegates  of  South  Carolina  could  not  sign 
the  Constitution  without  adequate  recognition  and 
protection  of  slavery,  and  that  if  they  did,  their 
States  would  not  ratify  it,  saying: 

S.  Carolina  &  Georgia  cannot  do  without  slaves. 
As  to  Virginia  she  will  gain  by  stopping  the 
importations.  Her  slaves  will  rise  in  value,  & 
she  has  more  than  she  wants.  It  would  be 
unequal  to  require  S.  C.  &  Georgia  to  confederate 
on  such  terms  ...  He  contended  that  the  impor- 
tation of  slaves  would  be  for  the  interest  of  the 
whole  Union.  The  more  slaves,  the  more  pro- 
duce to  employ  the  carrying  trade;  The  more 
consumption  also,  and  the  more  of  this,  the  more 
of  revenue  for  the  common  treasury.     He  admit- 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  641. 


Again 
a  Com- 
promise. 


42       Madison's  Debates  in  Federal  Convention 

ted  it  to  be  reasonable  that  slaves  should  be  dutied 
Ike  other  imports,  but  should  consider  a  reiec- 

Jrmle'unlon"  "  '"  ^^^^"^^°"  °^  ^-  C^^"- 

The  slave  trade  was  therefore  allowed,  but  in 
the  first  instanr  :  not  to  extend  beyond  the  year 
1800     In  the  session  of  August  25th  the  General 
moved   to  substitute   1808,   thus   prolonging   the 
trade  for  eight  years.    And  Mr.  Gorham,  whose 
mind  was  set  on  protecting  the  interest  which  his 
section  had  in  navigation  and  commerce,  just  as 
General  Pinckney  was  looking  after  the  interests 
of  his,      2  '^  the  motion "  as   reported  by  Mr 
Madison,    who    followed    Mr.    Gorham    with    a 
statement  in  his  own  behalf  that  "  Twenty  years 
will  produce  all  the  mischief  that  can  be  appre- 
hended from  the  liberty  to  import  slaves  " '    Still 
the  notion  was  carried :    New  Hampshire,  Massa- 
chusetts, Connecticut,  Maryland,  and   the  three 
bouthern  States  voting  in  its  favor;  New  Jersev 
Pennsylvania,  Delaware,  Virginia,  voting  againsi 
It,  i\ew  \  ork  not  being  represented.' 

In  the  session  of  August  29th,  'in  which  Mr. 
Oorham  for  the  second  time  reminded  the  dele- 
gates that  "  the  Eastern  States  were  not  led  to 
strengthen  the  Union  by  fear  for  their  own 
safety.  Genera.  Pinckney,  speaking  as  the  pleni- 
potentiary of  three  Southern  States,  and  they 
could  not  have  found  an  abler  man,  said: 

;  Documentary  History  of  the  Constitution,  vol.  iii     „    ,g. 
Documentary  History  of  the  Constitution    vol.  l'  6  < 

Documentary  H.story  of  the  Constitution,  vol.  i  i.  p         ' 


And  a  More  Perfect  Scclety  of  Nations      43 

It  was  the  true  interest  of  the  S.  States  to  have 
no  regulation  of  commerce;  but  considering  the 
loss  brought  on  the  commerce  of  the  Eastern 
States  by  the  revolution,  their  liberal  conduct 
toward  the  views  of  South  Carolina,  and  the 
interest  of  the  weak  South-"  States,  he  thought  it 
proper  that  no  fetters  should  be  imposed  on  the 
power  of  making  commercial  regulations;  and 
that  his  constituents,  though  prejudiced  against  the 
Eastern  States,  would  be  reconciled  to  this  liber- 
ality— He  had  himself,  he  said,  prejudices  ag" 
the  Eastern  States  before  he  came  here,  but  would 
acknowledge  that  he  had  found  them  as  liberal 
and  candid  as  any  men  whatever. ' 


II 

m 


As  Mr.  Madison  expressed  it  in  after  years, 
in  a  note  to  this  passage,  "  He  [General  Pinck- 
ney]  meant  the  permission  to  import  slaves.  An 
understanding  on  the  t\vo  subjects  of  navigation 
and  slavery,  had  taken  place  between  those  parts 
of  the  Union,  which  explains  the  vote  on  the 
Motion  depending,  as  well  as  the  language  of  Genl. 
Pinckney  &  others."  -  When,  therefore,  the  vote 
was  taken  to  strike  out  the  requirement  of  a  two- 
thirds  majority  in  navigation  acts,  it  was  agreed 
to  as  Mr.  Madison  says,  "  nem.  con ".'  Of  a 
truth,  a  fellow  interest  as  well  as  "a  fellow  feel- 
ing ma^es  us  wondrous  kind." 

These  two  incidents  have  been  dwelt  upon  at 
considerable  length  to  make  it  clear  from  the 
experience  of  the  Federal  Convention  that  while 

I  Dofumentary  History  of  the  Constitution,  vol.  iii.,  p.  637. 

I  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  637,  footnote. 

"  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  64a. 


M 
ll 


44       Madison's  Debates  in  Federal  Convention 

men  of  good  will  could  not  successfully  com- 
promise irreconcilable  interests  involving  funda- 
mental conceptions  of  right  or  wrong,  yet  they 
could  reach  a  "  working  agreement "  by  mutual 
concession  in  a  fundamental  principle  such  as 
equality,  not  involving,  as  we  would  say  today, 
moral  turpitude.  There  are  some  things  that 
majorities  or  unanimity  can  not  do,  as  when  Syd- 
ney Smith  wittily  stumped  the  leader  of  the  over- 
whelming Tory  majority  in  Parliament  to  take 
advantage  of  its  strength  to  repeal  the  Pytha- 
gorean Theorem!  Within  this  line,  the  nations 
of  the  Society  of  Nations  can  go  as  far  as  the 
States  of  the  American  Union  in  conference- 
assembled,  and  Mr.  Madison's  Notes  will  show 
them  how  honest  men,  when  not  confronted  by 
wholly  irreconcilable  interests,  such  as  black  and 
white,  can  "  safely  "  afford  to  act. 


Legislature,  Executive,  Judiciary 

These  two  great  questions  out  of  the  way,  the 
conference  reached  without  serious  difficulty  a 
workable  agreement,  as  events  have  proved,  upon 
the  legislative  department  with  an  upper  and  a 
lower  branch,  upon  specific  matters  concerning 
the  States  as  a  whole,  and  upon  laws  binding  the 
United  States,  the  States,  and  peoples  within  each 

of  them. 

Powers  to  be  granted  to  an  executive  called  the 
President,  were  agreed  upon,  such  as  the  power 
to  execute  the  laws  of  the  more  perfect  union.    It 


i,_ 


And  a  More  Perfect  Society  of  Nations       45 

was  easily  agreed  that  he  should  be  elected  for  a 
period  of  years,  the  nurpber  of  years  giving  rise 
to  much  controversy.  It  was  also  agreed  that 
he  be  eligible  to  reelection  by  the  people  within 
the  States,  responsible  to  them  for  the  faithful 
performance  of  the  rights  and  duties  of  his  office, 
subject  to  impeachment  in  the  Senate  represent- 
ing the  States  at  the  instance  of  the  House  of 
Representatives,  and  removable  upon  trial  under 
the  presidency  of  the  Chief  Justice  of  the  Supreme 
Court,  if  convicted  by  a  two-thirds  vote  of  the 
Senators  present.  Under  the  Constitution,  as  we 
all  know,  the  President  appoints  certain  officers 
of  the  United  States,  subject  to  confirmation  by 
the  Senate,  conducts  the  foreign  affairs  of  the 
Union,  receives  diplomatic  agents  from  foreign 
countries,  and  negotiates  treaties  and  conventions 
with  them  subject  to  the  advice  and  consent  of 
two-thirds  of  the  Senators  present. 

In  like  manner  there  was  no  insurmountable 
difficulty  in  creating  a  Supreme  Court  of  the 
Union,  although  there  was  considerable  debate 
in  reaching  an  agreement  that  the  Congress  might 
establish  federal  courts  of  first  instance  with  an 
appeal  to  the  Supreme  Court.  It  was  urged  that 
all  the  States  had  courts,  that  it  was  therefore 
unnecessary  to  create  new  and  competing  ones, 
and  that  uniformity  of  interpretation  of  the  Con- 
stitution, of  Acts  of  Congress,  of  treaties  of  the 
United  States,  of  constitutions  and  statutes  of  the 
several  States,  would  be  adequately  secured  on 
appeal  to  the  Supreme  Court  about  the  advis- 


lil. 


46       Madison's  Debates  in  Federal  Convention 

ability  of  whose  creation  there  was  neither  doubt 
nor  dispute.  Assuredly,  the  State  courts  could 
have  been  utilized  as  suggested,  but,  as  time  has 
demonstrated,  the  system  of  federal  courts  created 
by  the  Congress  and  operating  in  every  State 
and  Territory  has  worked  well,  and  the  de- 
cisions of  federal  questions  arising  and  corrected 
by  the  Supreme  Court  whenever  the  necessity 
arises. 


Nation  or 
Union  of 
States. 


International  Significance  of  the  States 
OF  THE  Union 

These  last  matters,  however,  are  familiar  and 
of  interest  to  the  American,  not  necessarily  to  the 
foreigner.  But  Mr.  Madison's  Notes  contain 
passages  respecting  the  States,  the  Union  of  States, 
the  relation  of  the  laws  of  the  Union  to  those  of 
the  several  States,  the  judiciary,  the  nature  of 
judicial  questions,  and  the  role  that  a  court  of 
Justice  plays  in  this  Union  of  States,  and  which 
it  can  therefore  play  in  the  Society  of  Nations. 
Such  passages  are  of  interest  to  American  or 
foreigner  believing  not  merely  in  the  possibility, 
but  in  the  absolute  necessity,  of  international 
organization.  The  international  aspect  of  these 
things  has  been  strangely  overlooked  because  of 
the  tendency  to  regard  the  United  States  as  a 
unitary  nation,  instead  of  a  union  of  States,  more 
perfect,  indeed,  than  that  of  the  Articles  of  Con- 
federation, but  nevertheless  a  union,  for  which  the 
people  of  the  several  States  ordained  and  estab- 


.  t 


And  a  More  Perfect  Society  of  Nations       47 

lished  this  Constitution  of  the  United  States,  to 
go  no  further  than  the  Preamble  to  that  venerable 
and  venerated  instrument  of  government.  These 
phases  of  the  subject  will  now  be  considered,  for 
which  Mr.  Madison's  Notes  can  be  and  must  be 
taken  as  the  first  of  texts  and  the  most  authentic 
of  sources. 

That  we  may  rightly  group  the  relations  of 
the  States  to  the  Union  let  us  consider  again 
what  was  to  be  done.  Twelve  States  had  met 
by  their  delegates  to  create  some  form  of  Union 
more  perfect  than  that  existing  under  the  Articles 
of  Confederation,  or  to  provide  that  Union  with 
the  powers  to  make  its  maintenance  worth  while. 
After  the  first  day  of  the  Convention  the  dele- 
gates were  trying  to  endow  a  new  Union  of  their 
own  creation  with  a  government,  to  carry  out  and 
to  exercise  the  sovereign  powers  which  the  several 
States  assembled   in  conference  believed,  as  the  Relation 

result  of  their  experience,  could  be  taken  from  f  5!***" 
,  ,  to  tne 

each  of  them  and  transferred  to  the  government  Union, 
of  the  Union.  This  government  was  to  be  and 
still  is  the  agent  of  the  States  for  general  purposes 
to  the  extent  of  the  sovereign  powers  granted  to 
it  by  the  people  of  the  several  States.  To  this 
extent  the  Union  is  sovereign.  The  sovereign 
powers  not  granted,  or  which  the  States  did  not 
renounce,  were  to  be  and  still  are  reserved  to  the 
several  States.  To  remove  any  doubt  on  this 
subject,  two  articles  to  be  added  to  the  Constitu- 
tion were  proposed  in  the  first  session  of  the  first 
Congress  meeting  under  it,  and,  ratified  by  three- 


I 


■   i 


48      Madison's  Debates  in  Federal  Convention 


"The 
People." 


fourths  of  the  legislatures  of  the  States  then  form- 
ing the  Union,  became  an  integral  part  of  the 
instrument.  The  first  of  the  two  Articles  provides 
that  "The  enumeration  in  the  Constitution,  of 
certain  rights,  shall  not  be  construed  to  deny  or 
disparage  others  retained  by  the  people."  The 
second,  that  "The  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited 
by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people." 

We  know  that  Mr.  Madison  approved  of  these 
Articles  because  he  proposed  them  to  the  Con- 
gress, and  because  in  the  course  of  the  debates 
he  said  so.  The  term  "  people,"  used  in  these  two 
articles  added  to  the  Constitution,  and  contained 
in  the  opening  words  of  the  Preamble  to  the 
Constitution,  means  the  people  of  the  States,  not 
the  people  generally  without  reference  to  the 
States.  While  this  is  the  reason  of  the  thing,  we 
can  nevertheless  invoke  the  highest  authority  for 
it,  if  authority  be  needed,  for  in  delivering  the 
unanimous  opinion  of  the  Supreme  Court  of  the 
United  States  in  the  leading  case,  which  is  also 
his  masterpiece,  of  McCulloch  v.  Maryland  (4 
Wheaton,  316,  403),  decided  in  1819,  the  greatest 
of  Chief  Justices,  John  Marshall,  said: 

No  political  dreamer  was  ever  wild  enough 
to  think  of  breaking  down  the  lines  which  sepa- 
rate the  States,  and  of  compounding  the  American 
people  into  one  common  mass. 

The  Chief  Justice  did  not,  however,  leave  the 
matter  here;  he  drew  and  stated  the  necessary  con- 


And  a  More  Perfect  Society  of  Nations      49 


elusion  of  his  thovght  and  of  his  language,  which 
was,  be  it  remembered,,  likewise  the  view  of  his 
brethren,  saying,  "  Of  consequence,  when  they  act, 
they  act  in  their  States.'' 

We  therefore  have  on  the  one  hand  the  Union 
with  its  government  of  three  branches,  invested 
with  sovereign  powers  of  a  general  nature,  con- 
ceived in  the  interest  of  the  States  as  a  whole,  not 
in  the  interest  of  any  one  or  group  thereof,  and  to 
be  exercised  in  the  interest  of  all;  and  on  the 
other  hand,  the  governments  of  the  several  States, 
possessing  and  exercising  the  reserved  sovereign 
powers  of  the  States,  or  those  whereof  they  did 
not  renounce  the  exercise.  Each,  as  Chief  Justice 
Marshall  has  finely  said  in  the  McCulloch  case.  Two 
is  sovereign  within  its  proper  sphere  and  neither  sovereign- 
sovereign  within  the  proper  sphere  of  the  other,  their 

How  were  these  two  sovereignties  to  be  kept  "^*"0'»- 
in  check,  that  is  to  say,  each  within  its  appro- 
priate sphere?  Mr.  Madison  and  his  closest 
friends  first  thought  by  investing  the  Union  with 
the  power  to  coerce  the  States  to  comply  with 
their  duties,  to  establish  a  council  of  revision  to 
pass  upon  and  to  veto  the  acts  of  the  States  and  of 
the  Federal  Legislature,  contrary  to  the  proposed 
Constitution.  The  discussion  of  these  matters  was 
long  and  interesting,  and  the  details  are  given,  no 
doubt  faithfully,  in  his  Notes  by  Mr.  Madison, 
who  records  his  repeated  attempts  to  achieve  his 
purpose  in  his  own  way,  the  repeated  failures  of 
himself  and  friends,  and  the  method  which  fin-  ''"he 
ally  and   fortunately   prevailed,   apparently   the  Law.*"' 


a 
f- 


50      Madison's  Debates  in  Federal  Convention 

only  method  fitted  for  States  of  the  Union  and 
worthy  of  consideration  by  States  of  the  Society 
of  Nations.  It  is  one  of  the  most  striking 
instances  in  which  the  conference  was  wiser  than 
its  wisest  members.  How  was  it  done?  By  the 
simple  expedient,  as  it  seems  to  us  of  today,  of 
making  the  Constitution,  the  laws  of  Congress 
made  pursuant  to  it  and  the  treaties  of  the  United 
States,  the  supreme  law  of  the  Union,  as  of  each 
of  the  States.  In  cases  of  controversy  any  or  all 
of  them  may  as  written  documents  be  passed 
upon,  interpreted  and  applied,  but  only  in  a 
specific  case  arising  thereunder  duly  carried  to 
the  court. 

In  the  Virginian  plan,  undoubtedly  drafted  by 
Madison  and  still  existing  in  his  handwriting, 
the  National  Legislature  was  to  be  vested  with  the 
powers  of  the  Congress  under  the  Articles  of 
Confederation  and  the  right  to  legislate  in  cases 
in  which  the  separate  States  were  incompetent  or 
involving  the  harmon>  jf  the  Union. 

In  addition,  and  of  especial  importance  for 
present  purposes,  the  proposed  National  Legis- 
lature was  to  be  possessed  by  the  sixth  resolution 
with  the  power  and  the  right  "  to  negative  all 
laws  passed  by  the  several  States,  contravening 
in  the  opinion  of  the  National  Legislature  the 
articles  of  Union;  and  to  call  forth  the  force  of 
the  Union  ag"  any  member  of  the  Union  failing 
to  fulfill  its  duty  under  the  articles  thereof  ".  * 

'  Documentary  Hitlory  of  the  Contlitution,  vol.  iii.,  p.  i8. 


And  a  More  Perfect  Society  of  Nations       51 

The  Society  of  Nations  and  the  Union 
OF  States 

The   eighth    resolution   of   the   Virginia   plan 
provided 

that  the  Executive  and  a  coPV'iKr.i  number  of 
the  National  Judiciary,  ought  to  iMpose  ;»  '^"oun- 
cil  of  Revision  with  authori*.  fi-  oc.i  ,;  -,  y  A  Court, 
act  of  a  National  LegisI?  u"^*  bcfou  *  st.. '1 
operate,  and  every  act  of  r.  ;t.i.;i.-  iIt  Icgisiat"  • 
before  a  Negative  there-  r-  •  il  t,c  i .Sr,  .,  ' 
that  the  dissent  of  the  sai  '  vJcui^i^  Ii^l!  . mo^  it 
to  a  rejection,  unless  tl  .•  Act  oi  ''ic  l\a'ao;ial 
Legislature  be  again  passeo  or  na:  ;  t  1  particu- 
lar Legislature  be  again  neg.itivta  by  th".  mem- 
bers of  each  branch. ' 

There  is  no  mention  here  of  a  court  as  such, 
except  that  a  number  of  judges  were  to  act  in  an 
advisory  capacity  upon  measures  which,  if  passed, 
they  might  have  to  interpret  and  apply.  But  in 
the  course  of  the  proceedings  the  court  as  such 
made  its  appearance,  replacing  other  provisions 
which  thereupon  disappeared  and  are  only  to  be 
found  in  Mr.  Madison's  Notes,  as  they  have 
otherwise  dropped  entirely  out  of  sight. 

In  the  first  place,  the  plan  to  coerce  a  State  was  Plan  to 
expressly  discarded  within  two  days  of  the  intro-  g°''" 
duction  of  the  plan  itself.    On  the  30th  of  May,  re.    ted 
Mr.  Mason,  according  to  Mr.  Madison,  "observed 
that  the  present  confederation  was  not  only  defi- 

^  Documentary  History  of  the  Constitution,  vol.  iii.,  pp.  18-19, 


I 


i 


52      Madison's  Debates  in  Federal  Convention 


Coercion 
for 

individuals 
only. 


cient  in  not  providing  for  coercion  &  punishment 
ag"  delinquent  States;  but  argued  very  cogently 
that  punishment  could  not  in  the  nature  of  thi.igs 
be  executed  on  the  States  collectively,  and  there- 
fore that  such  a  Gov**  was  necessary  as  could 
directly  operate  on  individuals,  and  would  punish 
those  only  whose  guilt  required  it."'  This  point 
of  view  evidently  impressed  Mr.  Madison,  be- 
cause, the  day  after,  he  himself  proposed  to  post- 
pone this  clause  when  it  was  reached  in  the  first 
reading,  saying,  as  reported  by  himself, 

that  the  more  he  reflected  on  the  use  of  force,  the 
more  he  doubted  the  practicability,  the  justice 
and  the  efficacy  of  it  when  applied  to  people 
collectively,  and  not  individually. —  A  Union 
of  the  States  containing  such  an  ingredient  seemed 
to  provide  for  its  own  destruction.  The  use  of 
force  ag"  a  State,  would  look  more  like  a  decla- 
ration of  war,  than  an  infliction  of  punishment, 
and  would  probably  be  considered  by  the  party 
attacked  as  a  dissolution  of  all  previous  compacts 
by  which  it  might  be  bound.  He  hoped  that  such 
a  system  would  be  framed  as  might  render  this 
resource  unnecessary,  and  moved  that  the  clause 
be  postponed." 

The  motion  was,  as  he  says,  "  agreed  to  nem. 
con ",'  and  the  subject  although  subsequeiitlv 
brought  before  the  conference  in  the  session  of 
June  ii;th,  by  the  New  Jersey  plan,  was  not  again 
seriously  considered  although  it  was  discussed. 

'  Doaimentary  History  of  the  Constitution,  vol.   iii.,   p.  22. 

"  Oncutnenlary  History  of  the  Constitution,  vol.   iii.,   pp.   33-34. 

'  Dncumenlary  History  of  the  Constitution,  vol.   iii.,  p.   34. 


1 

1 


i 


^ 


si 


\ 


S 


1 


I  I 


1 


upon    individuals 
dentally,    and    in 
ceptional    cases, 
form  as  well  as 


And  a  More  Perfect  Society  of  Nations       53 

It  is  indeed  true  that  the  Articles  of  Confeder- 
ation ooerated  upon  tlje  individual  in  what  may 
be  considered  minor  matters,  but  in  the  essentials 
of  government  only  upon  the  States  themselves. 
The  government  of  the  perfected  Union  acts 
in  essentials  and  only  inci- 
what  may  be  considered  ex- 
upon  States.  This  was  in 
in  fact  a  reversal  of  the  old 
order  of  things.  This  plan  of  Messrs.  Mason  and 
Madison  fortunately  prevailed,  and  the  system  of 
government  ultimately  adopted  coerces  the  indi- 
vidual and  controls  the  State  by  a  declaration  of 
the  Supreme  Court  that  the  statute  relied  upon 
is  not  a  defense  to  an  individual  acting  upon  and 
pleading  it  in  justification  of  his  action,  as  it  is 
inconsistent  with  the  Constitution,  and,  therefore, 
null  and  void.  In  the  course  of  the  session  of 
July  14th,  Mr.  Madison  "called  for  a  single 
instance  in  which  the  Gen-  Gov*  was  not  to  oper- 
ate on  the  people  individually."  *  Apparently 
none  was  given,  as  none  is  recorded  in  the  notes, 
and  Mr.  Madison  continued,  expressing  a  truth 
so  fundamental  as  to  deserve  to  become  an  axiom 
of  political  science,  that  "  the  practicability  of 
making  laws,  with  coercive  sanctions,  for  the 
States  as  political  bodies,  had  been  exploded  on 
all  hands."  ^ 

'  Dncumentary  History  of  the  Constitution,  vol,   iii.,  p.  340. 

In  the  43d  Number  of  The  Federalist,  which  appeared  on  January 
25,  1788,  Mr.  Madison  recurred  to  this  subject,  and  himself  answered 
the  question  to  which  no  reply  had  been  given  on  the  floor  of  the 
Convention. 

'  UiKumentary  History  of  the  Constitution,  vol.  iii.,  p.  340. 


I> 


Basis 
of   the 
Supreme 
Law. 


54       Madison's  Debates  in  Federal  Convention 

As  already  said,  it  was  necessary  to  make  of 
the  Constitution,  of  the  laws  of  Congress  enacted 
in  pursuance  thereof,  and  of  treaties,  the  supreme 
law  alike  of  the  Union  and  of  the  States.  To 
accomplish  this  Mr.  Madison  left  no  stone  un- 
turned, and  he  completely  succeeded,  albeit  after 
much  difficulty.  The  expedient  was  exceedingly 
simple  and  effective,  and  is  sufficiently  stated  for 
present  purposes  in  the  15th  and  last  resolution 
of  the  original  Virginian  plan,  to  the  effect  that 
the  amendments  which  shall  be  offered  to  the 
Confederation  by  the  Convention  ought  at  a 
proper  time,  or  times,  after  the  approbation  of 
Congress  to  be  submitted  to  an  assembly  or  as- 
semblies of  Representatives,  recommended  by  the 
several  Legislatures  to  be  expressly  chosen  by  the 
people,  to  consider  &  decide  thereon. ' 

The  reasons  for  submitting  the  Constitution  to 
the  conventions  of  the  people  to  be  held  in  each 
of  the  States,  specially  called  for  this  purpose, 
composed  of  members  chosen  by  the  people,  not 
by  the  legislatures,  were  fully  and  frequently 
stated  by  Mr.  Madison  during  the  course  of  the 
debates  on  this  question,  which  he  regarded,  and 
rightly,  as  of  fundamental  importance.  Of  the 
many  statements  of  Madison  and  his  followers, 
three  made  in  three  different  periods  of  the  Con- 
vention will  suffice.    Early  in  its  sessions, 

Mr.  Madison  fas  recorded  bv  himself,  under 
date  of  June  <;th]  thought  this  provision  essential. 
Ihe   articles  of  Confcd"   themselves  were  defec- 

'  Documenlary  History  of  the  Constitution,  vol.  iii.,   p.  20. 


a' 


And  a  More  Perfect  Society  of  Nations       55 

tive  in  this  respect,  resting  in  many  of  the  States 
on  the  Legislative  sanction  only.  Hence  in  con- 
flicts between  acts  of  the  States,  and  of  Cong^ 
especially  where  the  former  are  of  posterior  date, 
and  the  decision  is  to  be  made  by  State  Tribunals, 
an  uncertainty  must  necessarily  prevail,  or  rather 
perhaps  a  certain  decision  in  favor  of  State 
authority.  He  suggested  also  that  as  far  as  the 
articles  of  Union  were  to  be  considered  as  a 
Treaty  only  of  a  particular  sort,  among  the  Gov- 
ernments of  Independent  States,  the  doctrine 
might  be  set  up  that  a  breach  of  any  one  article, 
by  any  of  the  parties,  absolved  the  other  parties 
from  the  whole  obli,;;ation.  For  these  reasons 
as  well  as  others  he  thought  it  indispensable  that 
the  new  Constitution  should  be  ratified  in  the 
most  unexceptional  form,  and  by  the  supreme 
authority  of  the  people  themselves.' 

Later  when  the  matter  was  up  again  in  the 
session  of  July  23rd, 

Mr.  Madison  thought  it  clear  that  the  Legis- 
latures were  incompetent  to  the  proposed  changes. 
These  changes  would  make  essential  inroads  on 
the  State  Constitutions,  and  it  would  be  a  novel 
&  dangerous  doctrine  that  a  Legislature  could 
change  the  constitution  under  which  it  held  its 
existence.  There  might  indeed  be  some  constitu- 
tions within  the  Union,  which  had  given  a 
power  to  the  Legislature  to  concur  in  altera- 
tions of  the  federal  Compact.  But  there  were 
certainly  some  which  had  not;  and  in  t'^e  case 
of  these,  a  ratification  must  of  necessity  be  ob- 
tained from  the  people.  He  considered  the 
difference  between  a  system  founded  on  the  Legis- 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  pp.  65-66. 


,{ 


,  1 


'lit 


( 

:i»l 


■      1 


56       Madison's  Debates  in  Federal  Convention 

latures  only,  and  one  founded  on  the  people,  to 
be  the  true  difference  between  a  league  or  treaty, 
and    a    Constitution.     The    former    in    point    of 
moral  obligation   might  be  as   inviolable  as  the 
latter.      In    point    of    political    operation,    there 
were  two  important  distinctions  in  favor  of  the 
latter,     i.  A  law  violating  a  treaty  ratified  by  a 
pre-existing    law,    might    be    respected    by    the 
Judges  as  a  law,  though  an  unwise  &  perfidious 
one.     A  law  violating  a  constitution  established 
by  the  people  themselves,  would  be  considered 
by  the  Judges  as  null  &  void.     2.  The  doctrine 
laid  down  by  the  law  of  Nations  in  the  case  of 
treaties  is  that  a  breach  of  any  one   article  by 
any  of  the  parties,  frees  the  other  parties  from 
their  engagements.     In   the  case  of  a  union  of 
people  under  one  Constitution,  the  nature  of  the 
pact  has  always  been  understood  to  exclude  such 
an  interpretation.     Comparing  the  two  modes  in 
point  of  expediency  he  thought  all  the  considera- 
tions   which    recommended    this    Convention    in 
preference  to  Congress  for  proposing  the  reform 
were  in  favor  of  State  Conventions  in  preference 
to    the    Legislatures    for   examining    and    adopt- 
ing it.' 

Finally,  in  the  session  of  August  31st, 

Mi.  Madison  considered  it  best  to  require  Con- 
ventions; Among  other  reasons,  for  this,  that  the 
powers  given  to  the  Geii'  Gov-  were  being  taken 
from  the  State  Gov'-  the  Legislatures  would  be 
more  disinclined  than  conventions  composed  in 
part  at  least  of  other  men;  and  if  disinclined, 
they  could  devise  modes  apparently  promoting, 
but  really  thwarting  the  ratification.     The  diffi- 

'  Documentary  History  of  the  Constitution,   vol.   iii.,   p.   411. 


1 


And  a  More  Perfect  Society  of  Nation:       S7    ^ 

culty  in  Maryland  was  no  greater  than  in  other 
States,  where  no  mode  of  change  was  pointed  out 
by  the  Constitution,  and  all  officers  were  under 
oath  to  support  it.  The  people  were  in  fact, 
the  fountain  of  all  power,  and  by  resorting  to 
them,  all  difficulties  were  got  over.  They  could 
alter  constitutions  as  they  pleased.  It  was  a 
principle  in  the  Bills  of  rights,  that  first  prin- 
ciples might  be  resorted  to.* 

The  meaning  of  all  this  is  eminently  clear  and 
free  from  reasonable  doubt.     By  the  Declaration 
of  Independence,  the  people  were  lienceforward 
to  be  regarded  as  the  source  of  power.    The  pro- 
posed Constitution  for  all  the  States  was  drafted 
by  the  delegates  of  all  the  States.     The  constitu- 
tion of  each  State  dealing  with  questions  arising 
within  and  not  extending  beyond  the  confines  of 
the  State,  was  drafted  by  delegates  of  the  State. 
The  Constitution  of  the  United  States  was  to  be  Each 
ratified  by  the  people  of  each  of  the  States  in  ^^^^^^^^^^ 
order  to  bind  each  of  the  States.    The  State  con-  stitutions. 
stitution  was  to  be  ratified  only  by  the  people  of 
that  State.    Each  State  was  thus  to  have  two  con- 
stitutions each  ratified  by  the  source  of  power. 
namely  the  people. 

If  matters  had  stood  here,  each  constitution, 
National  and  State,  would  have  been  of  equal 
rank  and  validity.  But  all  doubts  are  removed 
by  other  considerations.  The  New  Jersey  plan, 
proposed  on  June  15th  by  Mr.  Paterson  of  that 
State,  in  behalf  of  the  smaller  States,   although 


If 

i 

i 


1 , 

'  ■■■4  '• 

.  1 


•  Documentary  History  of  the  Constitution,  vol.   iii.,   p.   656. 


I 

•     5 


■ 


58       Madison's  Debates  in  Federal  Convention 

rejected,   contained    an    article   which,    amended 
in  form  but  adopted  in  substance,  provided 

that  all  Acts  of  the  I'.  States  in  Cong-  made  bv 
virtue  &  in  pursuance  of  the  powers  hereby  & 
by  the  articles  of  confederation  vested  in  them, 
and  all  Treaties  made  &  ratified  under  the  author- 
ity of  the  r.  States  shall  be  the  supreme  law  of 
the  respective  States  so  far  forth  as  those  Acts 
or  Treaties  shall  relate  to  the  said  States  or  their 
Citizens,  and  that  the  Judiciarv  of  the  several 
States  shall  be  bound  thereby  iii  their  decisions, 
any  thing  in  the  respective  laws  of  the  Individual 
States  to  the  contrary  notwithstanding.' 

If  we  combine  this  clause,  which  as  amended 
forms  the  second  edition  of  Article  VI,  of  the 
f'JPJ«nj«     Constitution,  with  the  first  clause  of  the  second 
section    of   Article    III,    extending    the   judicial 
power  of  the  United  States  "  to  all  Cases,  in  Law 
and  Equity,  arising  under  this  Constitution,  the 
Laws  of   the  United   States,  and  Treaties  made, 
or  which  shall  be  made,  under  their  Authority," 
we  have  the  full  demonstration  of  the  problem. 
The  Constitution,  Acts  of  Congress,  and  treaties 
are    not    only    the    law,    but    the    supreme    law, 
of  the  Union  and  of  each  of  the  several  States, 
and  to  be  held  as  such  by  all  courts.  State  and 
Federal. 

To  the  student  of  international  conferences 
interested  to  know  how  our  forclathers  of  that 
day  settled  the  questions  of  revision,  constitution- 
ality,   amendments    and    withdrawal     from    the 

'  Dofumenlary  History  of  the  Constitution,  vol.  iii.,  pp.  127-128. 


Law  of 

both 

States 

and 

Union 


And  a  More  Perfect  Society  of  Nations       59 


Union,  only  a  few  words  are  necessary.  In  the 
Constitution  there  is  ao  place  for  a  council  of 
revision,  but  the  President  was  given  the  power 
to  veto  an  act  of  Congress  unless  passed  again 
by  a  two-thirds  majority  in  each  house.  Its  con- 
stitutionality is  to  be  determined  by  the  judges 
not  acting  in  an  advisory  capacity  but  as  judges 
in  the  decision  of  a  given  case  arising  under 
the  law.  "  A  junction  of  the  judiciary  "  would, 
as  John  Dickinson  aptly  said  in  the  session  of 
June  6th,  involve  "  an  improper  mixture  of 
powers."'  It  was  natural  that  the  State  judges 
should  pass  upon  the  question  of  repugnance  to 
the  supreme  law,  especially  because  the  Federal 
Constitution  was  likewise  the  constitution  of  the 
State,  and  the  supreme  law.  Since  the  Constitu- 
tion was  adopted  in  its  entirety  by  the  people  of 
each  of  the  several  States,  it  was  not  only  the 
supreme  law,  but  it  could  only  be  amended,  and 
the  relations  benveen  the  Union  and  the  States 
changed,  by  the  legislatures  or  conventions  of 
three-fourths  of  the  States,  in  accordance  with 
the  Fifth  Article.  There  is  here,  therefore,  no 
room  for  withdrawal,  for  the  people  of  a  State 
could  only  change  its  relations  to  the  Union 
by  the  vote  of  three-fourths  of  the  States.  It 
is  difficult  to  see  how  the  people  of  a  State  could 
withdraw  from  their  own  Constitution,  which 
they  themselves  and  in  conjunction  with  the  other 
States  had  made  their  suprcm.e  law.  Secession 
could  only  be  revolution. 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  79. 


Revision. 


Constitu- 
tionality. 


Amend- 
ments. 


Seces- 
sion. 


6o      Madison's  Debates  in  Federal  Convention 


Adxniuion 
of  new 

SUtCB. 


While  it  is  technically  correct  to  say  that  the 
Constitution   was  made  by   delegates   of    twelve 
States,  it  was  nevertheless  true  tha    its  framers 
contemplated  that  Rhode  Island,  wh  ch  was  not 
represented,  would  consent  to  ratify    t  and  thus 
make  the  more  perfect  union  coterminous  with 
the  English  colonies  of  the  New  World  which 
had  proclaimed  their  independence  on  July  4, 
1776,   and  whose  recognition  as  States  was   ac- 
knowledged by  the  mother  country  on  September 
3,  1783.    It  was  foreseen,  however,  that  the  terri- 
tory to  the  westward,  which  had  been  ceded  to 
the  United  States  by  the  States  claiming  it,  would 
be  peopled  by  the  venturesome  of  the  East  or 
their  descendants;    that  this  territory  would  be 
subdivided,  and,  at  the  instance  and  request  of 
the  inhabitants,  admitted  as  States  to  the  Union 
of  States  upon  what  terms?     As  equals  or  in- 
feriors?   The  far-sighted,  of  whom  Mr.  Mason, 
Mr.  Madison  and  Mr.  Sherman  were  conspicuous 
examples,  urged   their  admission   upon   equality. 
Gouverneur  Morris,  however,  and  some  others, 
wishing  to  maintain  the  supremacy  of  the  Atlan- 
tic seaboard   at  the  expense  of  the   inland  and 
Western  States,  opposed  this,  with  the  result  that 
the  third  section  of  the   Fourth  Article  of  the 
Constitution  merely  provides  that  "  New   States 
may  be  admitted  by  the  Congress  into  this  Union," 
without,  however,  stating  that  the  admission  was 
to  be  upon  terms  of  equality  with  the  other  mem- 
bers.    But  the  spirit  if  not  the  letter  required  it, 
and  in  practice  every  State  is  admitted  upon  a 


And  a  More  Perfect  Society  of  Nations      6i 

basis  of  equality,  so  that  the  latest  newcomer 
stands  upon  the  same  footing  with  the  States  that 
gained  their  independence  from  Great  Britain 
and  which  made  the  Constitution  of  the  United 
States  in  the  Federal  Convention  of  1787  a  pos- 
sibility. No  other  solution  of  the  problem  is  con- 
ceivable in  this  more  perfect  union  of  the  west- 
ern world;  no  other  solution  should  be  possible 
in  a  perfected  Society  of  Nations. 


Relation  of  Justiciable  to  Political 
Questions 

The  judicial  power  of  the  United  States  ex- 
tends only  to  justiciable,  not  political  questions, 
as  was  pointed  out  by  Mr.  Madison  in  the  ses- 
sion of  August  27th.  He  "doubted  whether  it 
was  not  going  too  far  to  extend  the  jurisdiction 
of  the  Court  generally  to  cases  arising  Under  the 
Constitution  &  whether  it  ought  not  to  be  limited 
to  cases  of  a  Judiciary  Nature.  The  right  of 
expounding  the  Constitution  in  cases  not  of  this 
nature  ought  not  to  be  given  to  that  Depart- 
ment." *  And  Mr.  Madison  was  doubtless  cor- 
rect when  he  says  it  was  "generally  supposed 
that  the  jurisdiction  given  was  constructively 
limited  to  cases  of  a  Judiciary  nature."*  Such 
was  the  view  of  the  conference,  such  is  the  view 
repeatedly  expressed  by  the  Supreme  Court  itself. 

How  the  unconstitutionality  of  an  act  and  the 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  626. 
•  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  6*6. 


t 


MICROCOPY   RESOIUTION   TEST   CHART 

(ANSI  and  ISO  TEST  CHART  No    2) 


1^     12.2 


^  /APPLIED  INA/IGE     Inc 

^^L  'feSi    fas)    Moir,    -jt'eet 

ir.S!  f'ocfiestef.    New    'o'k         U609        uSA 

"*S^  ■.  ^'6)   -.a;   -  0300  -  Phooe 

^S  (■■'16)    288  -  5989    -  fax 


The 
unconsti- 


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|i  § 


62       Madison's  Debates  in  Federal  Convention 

justiciable  nature  of  a  controversy  are  to  be  de- 
termined are  matters  of  such  international  im- 
portance as  well  as  of  domestic  concern  that 
they  may  well  be  examined  with  some  care. 

In  regard  to  the  first  matter,  it  may  be  said 
at  once  that  the  function  of  the  court  in  cases 
involving  the  constitutionality  of  an  act  as  under- 
"udonaiity  stood  in  the  American  Union  is  not  recognized 
of  an  act.  elsewhere,  although  our  method  seems  essential 
to  the  success  if  not  to  the  conception  of  a  Fed- 
eration. The  English  view,  prevailing  it  is  be- 
lieved generally,  except  in  the  more  perfect  Union 
of  the  United  States,  and  in  such  Federations 
as  the  Dominion  of  Canada  and  the  Common- 
wealth of  Australia,  is  shortly  stated  by  Mr. 
Justice  Willes,  who,  in  speaking  of  an  act  of 
Parliament  and  the  course  which  an  English 
court  of  justice  may  take  in  reference  to  it,  said, 
in  the  case  of  Lee  v.  Bade  and  Torrington  Junc- 
tion Railway  (Law  Reports,  6  Common  Pleas 
Division,  576),  decided  in  1871 : 

I  would  observe,  as  to  these  Acts  of  Parlia- 
ment, that  they  are  the  law  of  this  land ;  and  we 
do  not  sit  here  as  a  court  of  appeal  from  parlia- 
ment. It  was  once  said — I  think  in  Hobart^ — 
that,  if  an  Act  of  Parliaiucnt  were  to  create  a 
man  judge  in  his  own  case,  the  Court  might  dis- 
regard  it.     That  dictum,   however,   stands   as   a 

'  The  case  to  which  Mr.  Justice  Willes  refers  is,  as  stated  in  a  note 
to  the  opinion,  that  of  Day  v.  Savadge  (Hob.  Art.  87),  in  which  that 
learned  Judge  is  reported  by  himself  to  have  said:  "Even  an  Act  of 
Parliament  made  against  natural  equity,  as,  to  make  a  man  judge  in 
his  own  case,  is  void  in  itself;  for,  jura  naturae  sunt  immutabitia,  and 
they  are  leges  legum." 


And  a  More  Perfect  Society  of  Nations      63 

warning,  rather  than  an  authority  to  be  followed. 
We  sit  here  as  servants  of  the  Queen  and  the 
legislature.  Are  we  to. act  as  regents  over  what 
is  done  by  Parliament  with  the  consent  of  the 
Queen,  lords,  and  commons?  I  deny  that  any 
such  authority  exists.  If  an  Act  of  Parliament 
has  been  obtained  improperly,  it  is  for  the  legis- 
lature to  correct  it  by  repealing  it:  but,  so  long 
as  it  exists  as  law,  the  Courts  are  bound  to  obey 
it  The  proceedings  here  are  judicial,  not  auto- 
cratic, which  they  would  be  if  we  could  make 
laws  instead  of  administering  them. 

But  there  was  nevertheless  English  precedent 
for  the  American  way,  with  which  the  colonists 
were  familiar,  and  indeed  there  were  some  three 
American  precedents  within  the  personal  or  pro- 
fessional knowledge  of  the  lawyer  members  of 
the  Convention. 

It  was  a  principle  of  the  English  common  law 
that  an  act  of  a  corporation  in  excess  of  the  grant 
in   its  articles  of  incorporation  was  ultra  vires, 
and  as  such  null  and  void;    and  it  was  also  a 
principle  of  the  common  law,  that  by-laws  of  a 
corporation  could  not  be  valid  and  yet  contrary 
to  the  laws  of  England,  without  a  statement  by 
the    law-making    power    to    that    effect.    It    was 
further  a  principle  of  the  common  law  that  the 
king  himself  could  not  authorize  a  corporation 
to  pass  a  by-law  contrary  to  the  law  of  the  realm. 
The  importance  of  these  principles  will  appear 
if  it  be  noted  that  the  colonies  were  bodies  politic 
and  political  corporations,  and  therefore  any  act 
of  a  colonial  assembly  repugnant  to  the  laws  of 


I 


'ii' 


64      Madison's  Debates  in  Federal  Convention 


in  ■< 


■J 

'  i 
i 


England  was  null,  void  and  of  no  effect.  It 
could  be  disallowed  by  the  king  in  council,  and  a 
decision  of  the  colonial  court  based  upon  the  law 
could  be  reversed  by  the  king  in  council.  The 
leading  case  on  the  subject  was  that  of 
Withrop  V.  Lechmere  (7  Connecticut  Colonial 
Records,  571),  decided  in  1728,  in  which  the 
king  in  council  held,  upon  appeal  from  a 
Connecticut  court,  that  a  statute  of  that  colony 
modifying  the  course  of  inheritance  con- 
trary to  the  common  law  of  England  was 
null  and  void,  and  the  decisions  of  Connecti- 
cut courts  based  upon  it  were  accordingly  re- 
versed. The  case  was  clear,  as  the  charter  of 
Connecticut  only  authorized  that  body  politic 
"to  Make,  Ordain,  and  Establish  all  Manner  of 
Wholesome  and  Reasonable  Laws,  Statutes,  Ordi- 
nances, Directions,  and  Instructions,  not  Contrary 
to  the  Laws  of  this  Realm,  of  England."  The 
Constitution  of  the  Union  and  of  each  of  the 
several  States  wa?  in  these  respects  like  the  char- 
ter of  the  colony. 

There  were,  however,  three  American  cases 
laying  down  the  same  doctrine:  Holmes  v.  Wal- 
ton (4  American  Historical  Review,  456),  de- 
cided in  1780  by  the  Supreme  Court  of  New  Jer- 
sey; Trevett  v.  Weed  en  (Coxe,  Judicial  Power 
and  Unconstitutional  Legislation,  234),  decided 
in  1786  by  the  Supreme  Court  of  Rhode  Island, 
and  Bayard  v.  Singleton  (i  Martin,  N.  C.  48). 
In  the  first  two  of  these  cases  a  law  of  the  legis- 
lators was  declared  unconstitutional  as  contrary 


And  a  More  Perfect  Society  of  Nations      65 

to  the  constitution  of  the  one,  and  the  charter  of 
the  other,  for  Rhode  Island  continued  to  live 
until  1842  under  the  Royal  Charter  of  1663; 
and  in  the  third,  the  court  of  North  Carolina  not 
only  held  a  State  statute  contrary  to  the  Consti- 
tution to  be  null  and  void,  but  also  declared  the 
Articles  of  Confederation  to  be  the  supreme  law 
of  that  State. 

The  great  and  leading  case  on  the  subject  up- 
holding this  view  is  that  of  Marbury  v.  Madison 
(i  Cranch,  137,  177-178,  180),  decided  in  1803, 
in  which  Chief  Justice  Marshall,  speaking  for 
the  Supreme  Court  of  the  Union,  declared  an 
Act  of  Congress  unconstitutional  as  inconsistent 
with  the  Constitution,  saying: 

Ci*rtainly  all  those  who  have  framed  written 
constitutions  contemplate  them  as  forming  the 
fundamental  and  paramount  law  of  the  nation, 
and  consequently  the  theory  of  every  such  gov- 
ernment must  be,  that  an  act  of  the  legislature, 
repugnant  to  the  constitution,  is  void.  This 
theory  is  essentially  attached  to  a  written  consti- 
tution and  is  consequently  to  be  considered,  by 
this  court,  as  one  of  the  fundamental  principles 
of  our  society.  It  is  not,  therefore,  to  be  lost 
sight  of  in  the  further  consideration  of  this  sub- 
ject. 

If  an  act  of  the  legislature,  repugnant  to  the 
constitution,  is  void,  does  it,  notwithstanding  its 
invalidity,  bind  the  courts,  and  oblige  them  to 
give  it  efifect?  Or,  in  other  words,  though  it  be 
not  law,  does  it  constitute  a  rule  as  operative  as 
if  it  was  a  law?  This  would  be  to  overthrow  in 
fact,  what  was  established  in  theory;    and  would 


y 


66       Madison's  Debates  in  Federal  Convention 


Difference 

between 

Judicial 

and 

Political 

cases. 


seem,  at  first  view,  an  absurdity  too  gross  to  be 
insisted  on.  It  shall,  however,  receive  a  more 
attentive  consideration. 

It  is  emphatically  the  province  and  duty  of 
the  judicial  department,  to  say  what  the  law  is. 
Those  who  apply  the  rule  to  particular  cases, 
must  of  necess'ty  expound  and  interpret  that  rule. 
If  two  laws  conflict  with  each  other,  the  courts 
must  decide  on  the  operation  of  each. 

So  if  a  law  be  in  opposition  to  the  constitu- 
tion ;  if  both  the  law  and  the  constitution  apply  to 
a  particular  case,  so  that  the  court  must  either  de- 
cide that  case  conformably  to  the  law,  disregard- 
ing the  constitution;  or  conformably  to  the  con- 
stitution, disregarding  the  law;  the  court  must 
determine  which  of  these  conflicting  rules  gov- 
erns the  case.  This  is  of  the  very  essence  of  judi- 
cial duty. 

If  then  the  courts  are  to  regard  the  constitution; 
and  the  constitution  is  superior  to  any  ordinary 
act  of  the  legislature,  the  constitution,  and  not 
such  ordinary  act,  must  govern  the  case  to  which 
they  both  apply    .     .     . 

It  is  also  not  entirely  unworthy  of  observation, 
that  in  declaring  what  shall  be  the  supreme  law 
of  the  land,  the  constitution  itself  is  first  men- 
tioned; and  not  the  laws  of  the  United  States, 
generally,  but  those  only  which  shall  be  made 
in  pursuance  of  the  constitution,  have  that  rank. 

If  the  judicial  power  only  extends  to  judicial 
and  not  to  political  cases,  it  becomes  of  importance 
to  define  the  distinction  between  them.  This  the 
Supreme  Court  has  done  in  a  long  line  of  cases, 
among  which  may  be  mentioned  the  following: 
Foster  v.   Neilson    (2   Peters,   ^53),   decided   in 


And  a  More  Perfect  Society  of  Nations       67 

1829;  f^illiams  v.  Suffolk  Insurance  Company  (13 
Peters,  415),  decided, in  1839;  Luther  v.  Borden 
(7  Howard,  i),  decided  in  1849;  the  Prize  Cases 
(2  Black,  635),  decided  in  1862;  State  of  Missis- 
sippi V.  Johnson    (4  Wallace,  475),  decided  in 
1866;  State  of  Georgia  v.  Stanton    (6  Wallace, 
50),    decided    in    1867,    and    Pacific    Telephone 
Company  v.  State  of  Oregon    (223  U.   S.   118), 
decided  in  191 2.    With  these  cases  at  his  disposal 
the  foreign  as  well  as  the  American  publicist  can 
readily  appreciate  the  distinction,  and  it  is  there- 
fore a  confession  of  ignorance  to  maintain  that 
the  distinction  can  not  be  laid  down  by  a  court 
with  precision.     It  is  a  manifestation  of  repug- 
nance  to  judicial   decision   to   contend   that   the 
foreign  government  must  determine  this  question 
for  itself  on  the  ground  that  a  court  of  justice 
is  incompetent  in  the  premises. 

But  if  a  political  question  must  always  remain 
political,   and   can  not  become  justiciable  so   as 
to  fall  w  ithin  the  domain  of  the  judicial  power,  jj  ^ 
and   thus  within   the  jurisdiction  of  a  court  of  political 
justice,  the  usefulness  of  an  international  court  maT*""' 
is  indeed  limited,  although  within  its  sphere  it  become 
may  justify  its  creation   a   thousand   times  over 
by  the   decision   of  justiciable   disputes   between 
nations.      A    political    question    may,    however, 
become  justiciable.     It   is  within  the   power  of 
any  two  nations  to  make  it  so  between  themselves. 
It  is  therefore  within  the  power  of  the  nations 
of  the  Society  of  Nations  to  make  it  so  between 
and  among  themselves.     The  Supreme  Court  of 


judicial. 


u 


ii 


1  , 

8  i 


H 


tl 


68       Madison's  Debates  in  Federal  Convention 


Mr. 

Justice 

Baldwin. 


the  United  States  has  so  held,  and  has  stated  the 
method  with  the  precision  of  the  judge  and  the 
vision  of  the  statesman,  in  the  case  of  The  State 
of  Rhode  Island  v.  The  State  of  Massachusetts 
(i2  Peters,  657,  736-8),  decided  in  1838,  in 
which  Mr.  Justice  Baldwin,  delivering  the  opin- 
ion of  his  brethren,  said: 

The  founders  of  our  government  could  not 
but  know,  what  has  ever  been,  and  is  familiar 
to  every  statesman  and  jurist,  that  all  controver- 
sies between  nations,  are,  in  this  sense,  political, 
and  not  judicial,  as  none  but  the  sovereign  can 
settle  them.  In  the  declaration  of  independence, 
the  states  assumed  their  equal  station  among  the 
powers  of  the  earth,  and  asserted  that  they  could 
of  right  do,  what  other  independent  states  could 
do;  "declare  war,  make  peace,  contract  alli- 
ances;" of  consequence,  to  settle  their  contro- 
versies with  a  foreign  power,  or  among  them- 
selves, which  no  state,  and  no  power  could  do  for 
them.  They  did  contract  an  alliance  with  France, 
in  1778;  and  with  each  other,  in  1781 :  the 
object  of  both  was  to  defend  and  secure  their 
asserted  rights  as  states;  but  they  surrendered 
to  congress,  and  its  appointed  Court,  the  right 
and  power  of  settling  their  mutual  controversies; 
thus  making  them  judicial  questions,  whether  they 
arose  on  "  boundary,  jurisdiction,  or  any  other 
cause  whatever."  There  is  neither  the  authority 
of  law  or  reason  for  the  position,  that  boundary 
between  nations  or  states,  is,  in  its  nature,  any 
more  a  political  question,  than  any  other  sub- 
ject on  which  they  may  contend.  None  can  be 
settled  without  war  or  treaty,  which  is  by  poli- 
tical power;   but  under  the  old  and  new  confed- 


And  a  More  Perfect  Society  of  Nations      69 


eracy  they  could  and  can  be  settled  by  a  court 
constituted  by  themselves,  as  their  own  substi- 
tutes, authorized  to '  do  that  for  states,  which 
states  alone  could  do  before.  We  are  thus  pointed 
to  the  true  boundary  line  between  political  and 
judicial  power,  and  questions.  A  sovereign  de- 
cides by  his  own  will,  which  is  the  supreme  law 
within  his  own  boundary;  6  Peters  714;  9  Peters 
748;  a  court,  or  judge,  decides  according  to  the 
law  prescribed  by  the  sovereign  power,  and  that 
law  is  the  rule  for  judgment.  The  submission  by 
the  sovereigns,  or  states,  to  a  court  of  law  or 
equity,  of  a  controversy  between  them,  without 
prescribing  any  rule  of  decision,  gives  power  to 
decide  according  to  the  appropriate  law  of  the 
case;  11  Ves.  294;  which  depends  on  the  sub- 
ject matter,  the  source  and  nature  of  the  claims 
of  the  parties,  and  the  law  which  governs  them. 
From  the  time  of  such  submission,  the  question 
ceases  to  be  a  political  one,  to  be  decided  by  the 
sic  volo,  sic  jubeo,  of  political  power;  it  comes 
to  the  court  to  be  decided  by  its  judgment,  legal 
discretion,  and  solemn  consideration  of  the  rules 
of  law  appropriate  to  its  nature  as  a  judicial 
question,  depending  on  the  exercise  of  judicial 
power;  as  it  is  bound  to  act  by  known  and  settled 
principles  of  national  or  municipal  jurisprudence, 
as  the  case  requires.     .     .     . 

These  considerations  lead  to  the  definition  of 
political  and  judicial  power  and  questions;  the 
former  is  that  which  a  sovereign  or  state  exerts 
by  his  or  its  own  authority,  as  reprisal  and  con- 
fiscation; 3  Ves.  429:  the  latter  is  that  which  is 
granted  to  a  court  or  judicial  tribunal.  So  of 
controversies  between  states;  they  are  in  their 
nature  political,  when  the  sovereign  or  state  re- 
serves   to    itself    the    right    of    deciding    on    it; 


^ 


yw 
at' 


70      Madison's  Debates  in  Federal  Convention 

makes  it  the  "subject  of  a  treaty,  to  be  settled 
as  between  states  independent,"  or  "  the  founda- 
tion of  representations  from  state  to  state."  This 
is  political  equity,  to  be  adjudged  by  the  parties 
themselves,  as  contradistinguished  from  judicial 
equity,  administered  by  a  court  of  justice,  decree- 
ing the  equum  et  bonum  of  the  case,  let  who  or 
what  be  the  parties  before  them. 


A  lesson 
for  the 
Society  of 
Nations. 


I  s 


From  this  remarkable  utterance  it  is  clear  that 
should  the  Society  of  Nations  or  any  consider- 
able number  of  the  nations  be  minded  to  take  the 
step,  it  would  not  be  a  leap  in  the  dark,  nor  would 
it  be  even  an  experiment.  The  Philadelphia 
Convention  showed  how  easily  the  step  may  be 
taken,  and  the  Supreme  Court  has  by  the  prac- 
tice and  procedure  of  a  century  in  the  matter 
of  controversies  between  States  furnished  the 
precedents  which  men  of  good  will  may  heed. 
All  of  the  nations  do  not  need  to  agree  to  form 
an  international  tribunal,  for  the  American  plan 
of  a  more  perfect  Union  was  to  go  into  effect 
when  nine  of  the  States  should  ratify  the  Consti- 
tution, and  it  is  fundamental  to  bear  in  mind 
that  by  the  express  language  of  the  Constitution, 
only  those  States  were  to  be  bound  which  did 
so  ratify  it.  Nor  is  it  necessary,  on  the  other 
hand,  that  the  nations  form  themselves  into  a 
Union  of  States  for  all,  or  even  for  general  pur- 
poses, as  States  united  for  judicial  settlement  will 
suffice  for  justiciable  purposes.  They  merely 
need  to  agree  by  treaty,  convention,  compact, 
call  it  what  you  will,  to  submit  their  disputes. 


And  a  More  Perfect  Society  of  Nations       71 

heretofore  unsettled  by  their  diplomatic  agents, 
to  a  court  of  their  own  creation,  and  therefore 
their  agent  for  this  purpose.  In  the  impressive 
language  of  Mr.  Justice  Baldwin  the  dispute 
would  be  "  settled  by  a  court  constituted  by  them- 
selves, as  their  substitutes  authorized  to  do  that 
for  the  States,  which  States  alone  could  do  be- 
fore," according  to  the  appropriate  law  of  the 
case,  depending  upon  "  the  subject  matter,  the 
source  and  nature  of  the  claims  of  the  parties, 
and  the  law  which  governs  them,"  and  according 
to  "  its  judgment,  legal  discretion,  and  solemn 
consideration  of  the  rules  of  law  appropriate 
to  its  nature  as  a  judicial  question,  depending  on 
the  exercise  of  judicial  power;  as  it  is  bound  to 
act  by  known  and  settled  principles  of  national 
or  municipal  jurisprudence  as  the  case  requires." 
The  illustration  by  which  the  learned  justice 
enforces  his  views  is  not  only  apt,  but  unanswer- 
able, showing  the  vast  extent  and  nature  of  the 
domain  already  subjected  to  judicial  settlement. 
Thus  he  says: 

It  has  never  been  contended  that  prize  courts 
of  admiralty  jurisdiction,  or  questions  before 
them,  are  not  strictly  judicial;  they  decide  on 
questions  of  war  and  peace,  the  law  of  nations, 
treaties,  and  the  municipal  laws  of  the  capturing 
nation,  by  which  alone  they  are  constituted;  a 
fortiori,  if  such  courts  were  constituted  by  a 
solemn  treaty  between  the  State  under  whose 
authority  the  capture  was  made,  and  the  State 
whose  citizens  or  subjects  suffer  by  the  capture. 
All   nations   submit  to   the  jurisdiction   of   such 


72       Madison's  Debates  in  Federal  Convention 


.'{ 


courts  over  their  subjects,  and  hold  their  final 
decrees  conclusive  on  rights  of  property.  6  Cr. 
284-5. 

What  had  been  done  in  the  matter  of  prize, 
the  ramers  of  the  Constitution  did  in  other  dis- 
putes between  States  of  a  kind  and  nature  to  be 
decided  in  a  court  of  justice  in  accordance  with 
Mr.  Justice  Baldwin's  views  by  the  simple,  prac- 
ticable and  highly  successful  expedient  of  extend- 
ing the  judicial  power  of  the  United  States — or 
if  you  please,  of  the  Society  of  Nations,  or  of 
the  contracting  parties — "  to  controversies  between 
two  or  more  States,"  which  because  of  this  ex- 
tension become  "  of  a  Judiciary  nature,"  to  use 
Mr.  Madison's  expression,  already  quoted  in  an- 
other connection. 

Lest  the  process  may  seem  too  simple,  or  too 
easy,  it  is  wise  to  yield  the  floor  again  to  Mr. 
Justice  Baldwin,  who  says  in  an  earlier  portion 
of  the  opinion  of  the  Supreme  Court  in  the 
Rhode  Island  and  Massachusetts  case  (12  Peters, 
654,  720): 

Those  states,  in  their  highest  sovereign  capacity, 
in  the  convention  of  the  people  thereof;  on  whom, 
by  tne  revolution,  the  prerogative  of  the  crown, 
and  the  transcendent  power  of  parliament  de- 
volved, in  a  plenitude  unimpaired  by  any  act,  and 
delegated  Controllable  by  no  authority,  6  >Vheat.  651;  8 
authority.  Wheat.  584,  88;  adopted  the  constitution,  by 
which  they  respectively  made  to  ihe  United 
States  a  grant  of  judiciary  power  over  contro- 
versies between  two  or  more  states.  By  the  con- 


Jurisdic 
tion  by 
consent 
and 


And  a  More  Perfect  Society  of  Nations      73 

stitution,  it  was  ordained  that  this  judicial  power, 
in  cases  where  a  state  was  a  party,  should  be 
exercised  by  this  Coiirt  as  one  of  original  juris- 
diction. The  states  waived  their  exemption  fiom 
judicial  power,  6  Wheat.  378,  80,  as  sovereigns 
by  original  and  inherent  right,  by  their  own  grant 
of  its  exercise  over  themselves  in  such  cases,  but 
which  they  would  not  grant  to  any  inferior  tri- 
bunal. By  this  grant,  this  Court  has  acquired 
jurisdiction  over  the  parties  in  this  cause,  by  their 
own  consent  and  delegated  authority;  as  their 
agent  for  e.xecuting  the  judicial  power  of  the 
United  States  in  the  cases  specified. 

Will  the  sovereign  States  of  the  Society  of 
Nations  obstinately  refuse  to  follow  the  path 
beaten  out  and  marked  by  the  sovereign  States 
of  the  New  World,  which  recognized  that  be- 
tween diplomacy  and  war,  which  they  renounced, 
there  is  only  war?  The  question  is  not  what 
existed  before  the  meeting  of  the  States  in  confer- 
ence in  Philadelphia,  in  the  year  of  grace  1787. 
It  is  no  longer  necessary  to  originate,  it  is  only  A  light 
necessary  to  follow,  for  the  wise  men  of  that  day  J^oVjd!  ' 
and  generation  and  of  that  Convention  made 
State  suable  by  State,  and  in  the  course  of  a 
hundred  years  of  litigation  both  the  practice  and 
procedure  to  be  followed  are  spread  before  the 
nations,  not  figuratively  as  ii.  an  open  book, 
but  literally  in  a  series  of  books  known  as  the 
Reports  of  the  Supreme  Court  of  the  United 
States,  which  their  rulers  can  purchase  for  a 
few  paltry  dollars  and  master  in  their  moments 
of  leisure  to  their  enduring  benefit  between  the 


;: 


m  .' 


74       Madison's  Debates  in  Federal  Convention 

maneuvers  of  their  armies  and  the  reviews  of 
their  fleets. 

The  desire  expressed  by  Richard  Caswell,  Gov- 
ernor of  the  State  of  North  Carolina,  in  a  letter 
dated  July  26,  1787,  addressed  to  Mr.  R.  D. 
Spaight,  a  delegate  of  that  State  in  attendance 
upon  the  Convention,  for  "  an  independent  Judi- 
cial department  to  decide  any  contest  that  may 
happen  between  the  United  States  and  individual 
States  &  between  one  State  and  another,"  ^  has 
been  more  than  realized.  State  has  appeared 
against  State  in  the  Supreme  Court  of  the  States, 
and  the  judges  of  thut  court  have  decided,  after 
argument  of  counsel  and  mature  reflection  on 
their  part,  many  a  controversy  which  would  have 
been  a  cause  for  war  if  it  had  been  between 
disunited  States,  instead  of  between  members  of 
united  States. 

As  was  to  be  expected,  from  the  looseness  with 
which  their  charters  were  drawn,  the  boundaries 
of  the  States  gave  rise  to  litigation  in  the  Supreme 
Court,  just  as  they  had  given  rise  to  dispute  be- 
tween the  colonies,  and  were  settled  by  the  king 
in  council.  There  were  eleven  such  disputes  out- 
standing between  and  among  the  States  when 
the  government  under  the  Constitution  went  into 
effect.  For  a  number  of  years  thereafter,  the 
only  controversies  between  the  States  in  which  the 
jurisdiction  of  the  Supreme  Court  was  invoked 
related  to  boundary,  and  the  first  final  decision 


'North   Carolina   State   Records,  xx,   753;   quoted   from   Farrand, 
Records  nf  the  Federal  Cnnvention  nf  17S7,  vol.  iii.,  p.  64. 


And  a  More  Perfect  Society  of  Nations       75 

in  a  case  of  this  kind  was  rendered  as  late  as 
1846,  between  Rhode  Island  and  Massachusetts, 
which  latter  State,  curiously  enough,  objected  to 
the  jurisdiction  of  the  court,  which,  however  and 
notwithstanding,  decided  in  its  favor.'  As  the 
result  of  confidence  in  judicial  decision,  some 
thirty-one  of  the  forty-eight  States  now  composing 
the  Union  have  been  plaintiflf  or  defendant  at 
one  time  or  another  in  controversies  between  and 
among  them.  The  United  States,  itself,  has 
appeared  at  the  bar  of  the  Supreme  Court,  and 
has  filed  its  complaint  against  more  than  one  of 
these  united  States.  From  boundary  disputes, 
the  jurisdiction  of  the  court  has  been  invoked 
in  cases  of  contract,  in  differences  concerning 
riparian  right,  in  matters  affecting  the  health 
and  well-being  of  their  inhabitants;  and  in  the 
course  of  time  State  will  doubtless  appear  against 
State  in  every  kind  of  a  dispute  arising  betw^een 
them,  which  can  be  presented  to  a  court,  because 
there  is  no  limit  to  litigation  between  States  recog- 
nizing the  principles  of  justice  and  willing  to 
conform  to  the  rule  of  law. 

The  eighty-odd  decisions  of  the  Supreme  Court 
of  the  "  several  States,"  to  use  the  language  of 
the  conference,  in  controversies  between  them, 
remove  the  question  of  the  feasibility  of  such  a 
tribunal  from  the  field  of  academic  discussion, 
making  of  it  simply  a  concrete  matter  of  worldly 
and  of  political  wisdom. 

There  is  little  in  Madison's  Notes  on  this  "  in- 

'  State  of  Rhode  Island  v.  State  of  Massachusetts,  4  Howard,  591. 


The 

Judiciary 
in  the 
Consti- 
tutional 
Con- 
vention. 


76      Madison's  Debates  in  Federal  Convention 

teresting  matter"  as  it  would  have  been  called 
by  the  framers  of  the  Constitution.  Every  State 
had  the  threefold  division  of  sovereign  powers. 
Every  State  had  its  judiciary.  That  the  Union 
was  to  have  one  apparently  went  without  say- 
ing— at  least  there  is  no  evidence  that  this  phase 
of  the  subject  was  debated  or  that  it  even  gave 
rise  to  any  difference  of  opinion.  Indeed,  there 
is  next  to  nothing  on  the  matter  of  controversies 
between  States.  Diplomacy  had  failed  to  settle 
their  many  and  difficult  disputes,  and  war  they 
would  not  have,  for  they  were  unwilling  like 
Saturn  to  be  devoured  by  their  own  offspring. 
In  colonial  times  dis'putes  between  the  colonies 
all  independent  of  one  another  and  all  without 
tribunals  of  their  own  to  which  they  might  defer 
as  of  right  their  "Judiciary"  cases,  were,  how- 
ever, in  default  of  a  supreme  court  of  the  colonies 
carried  to  the  Privy  Council  in  England,  where 
they  were  settled  by  that  due  process  of  law 
which  hears  before  it  determines,  and  decides 
according  to  the  law  of  the  case.  Indeed,  three 
of  the  boundaries  of  Rhode  Island — the  fourth 
is  the  ocean — have  been  fixed,  two  by  judicial 
decree  of  the  Privy  Council  of  colonial  days,  at 
the  instance  of  Rhode  Island  against  Connecticut 
and  Massachusetts,'  and  one  later  under  the  more 
perfect  Union,  by  a  decision  of  the  Supreme 
Court  in  a  controversy  between  Rhode  Island  and 

'  Colony  of  Rhode  Island  v.  Colony  of  Connecticut  (3  Acts  of  the 
Privy  Council,  Colonial  Series,  10),  decided  in  1727;  Colony  of  Rhode 
Island  V.  Colony  of  Massachusetts  (3  Acts  of  the  Privy  Council, 
Colonial  Series,  436),  decided  in  1746. 


And  a  More  Perfect  Society  of  Nations      yj 

Massachusetts.'  The  erstwhile  colonists  invested 
the  Congress  under  ^he  Articles  of  Confedera- 
tion with  this  portion  of  the  jurisdiction  for- 
merly exercised  by  the  Privy  Council,  and  de- 
vised a  method  of  appointing  commissioners  for 
the  temporary  couits,  who  were  to  decide  "  all 
disputes  and  differences"  then  existing  or  after- 
ward arising  "  between  two  or  more  States  con- 
cerning boundary,  jurisdiction  or  any  other  cause 
whatever."  The  principles  of  judicial  procedure 
were  readily  acceptable  to  the  framers  of  the 
Constitution  because  beyond  the  pale  of  contro- 
versy. 

In  the  Virginian  plan  the  national  judiciary 
was  to  have  jurisdiction  of  "  questions  which 
may  involve  the  national  peace  and  harmony." 
In  section  3  of  the  Eleventh  Article  of  the  first 
draft  of  the  Constitution  reported  by  the  Com- 
mittee of  Detail  on  August  6th,  the  judicial  power 
of  the  United  States  was  extended  to  "  contro- 
versies between  two  or  more  States,"  excepting 
therefrom  such  as  regarded  "  Territory  or  Juris- 
diction." *  These,  as  involving  the  sovereignty 
of  the  States  were,  by  the  Ninth  Article  of  the 
draft,  to  be  referred  to  the  Senate,  representing 
the  States  as  such,  just  as  they  were  and  for  a 
like  reason  referred  to  the  Congfess  under  the 
Ninth  of  the  Articles  of  Confederation.  This 
cause  was  taken  up  in  the  session  of  August  24th 

"  State  of  Rhode  Island  v.  State  of  Massachusetts  (4  Howard,  591), 
decided  in  1S46. 

•  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  454. 


Jh 


m 


78       Madison's  Debates  in  Federal  Convention 

and  was  quickly  disposed  of,  Mr.  Rutledge  of 
South  Carolina,  soon  to  be  appointed  Chief  Jus- 
tice of  the  Supreme  Court,  saying,  according  to 
Mr.  Madison,  that  "  this  provision  for  deciding 
controversies  between  the  States  was  necessary 
under  the  Confederation,  but  will  be  rendered 
unnecessary  by  the  National  Judiciary  now  to 
be  established,  and  moved  to  strike  it  out."  ^  Dr. 
Johnson,  a  wise  and  able  delegate  and  experienced 
lawyer  from  Connecticut,  who  had  tried  and  lost 
the  case  of  Connecticut  against  Pennsylvania,"  the 
one  case  tried  by  a  temporary  commission  under 
the  Articles  of  Confederation,  seconded  the 
motion,  in  which  Mr.  Sherman,  likewise  a 
lawyer  from  Connecticut,  "  concurred." '  Mr. 
Williamson,  a  physician  of  North  Carolina,  had 
his  doubts  it  would  seem,  and  favored  "  postpon- 
ing instead  of  striking  out,  in  order  to  consider 
whether  this  might  not  be  a  good  provision,  in 
cases  where  the  Judiciary  were  interested  or  too 
closely  connected  with  the  parties"*;  Mr.  Gor- 
ham,  a  merchant  of  Massachusetts,  also  "  had 
doubts  as  to  striking  out,  the  Judges  might  be 
connected  with  the  States  being  parties.  He  was 
inclined  to  think  the  mode  proposed  in  the  clause 
would  be  more  satisfactory  than  to  refer  such 
cases  to  the  Judiciary." '"  Only  New  Hampshire, 
North  Carolina  and  Georgia  voted  for  postpone- 


'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  607. 
'  131   U.  S.,  Appendix,  p.  liv.,  decided  in  1781. 

'  Documentary  History  of  the  Constitution,  vol.   Iii.,  p.  607. 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  607. 

'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  607. 


And  a  More  Perfect  Society  of  Nations       79 

ment;  whereupon  Mr.  Wilson,  a  distinguished 
lawyer  of  Pennsylvania,  who  had  won  the  case 
for  his  State  in  its  controversy  with  Connecticut 
in  which  Dr.  Johnson  had  appeared  for  that 
State  against  him,  "  urged  the  striking  out,  the 
Judiciary  being  a  better  provision."  '  Only  North 
Carolina  and  Geo/gia  stood  by  Mr.  Gorham, 
whose  State  voted  against  him,  and  the  Supreme 
Court  of  the  Union  was  vested  with  jurisdiction 
in  controversies  between  the  several  States 
thereof,  with  only  a  constructive  exception  of 
those  of  "  a  judiciary  nature  "  again  to  use  Mr. 
Madison's  phrase. 

There  was,  however,  a  further  category  of 
controversies  contained  in  the  Articles  of  Con- 
federation, but  not  submitted  to  the  Court  in  the 
first  draft  of  the  Constitution.  This  was  discov- 
ered by  the  keen  and  penetrating  eye  of  Mr.  Sher- 
man, who  proposed  in  the  session  of  August  27th, 
with  the  unanimous  approval  of  the  Convention' 
to  invest  the  court  with  "jurisdiction  of  causes 
'  between  Citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States,'  according 
to  the  provision  in  the  9th  art.  of  the  Confed- 
eration."' ' 

The    Supreme    Court    therefore    became    the 
legitimate   successor  of   the   Privy   Council   and 
Congress,  and  because  of  this  we  are     -^vileged  to  Again  the 
repeat,  it  oflFers  the  nations  a  mode      .id  a  hope  JS'si  - 
of    judicial     settlement    of    their    controversies  nXance*" 

I  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  608 
Documentary  History  of  the  Constitution,  vol.  iii.,  p.  627. 


8o       Madison's  Debates  in  Federal  Convention 


i  :) 


■■I  , 
ill  ' 


•  k 


which,  if  they  are  to  be  got  out  of  the  way  after 
the  breakdown  of  diplomacy,  can  only  be  settled 
by  war.  If  the  nations  only  will,  they  may  make 
a  union  of  any  of  their  number  for  judicial  settle- 
ment, and  that  by  simply  a  treaty,  convention, 
compact  or  agreement,  creating  the  court,  grant- 
ing it  jurisdiction,  defining  its  procedure,  to  be 
set  in  motion  by  the  plaintiff,  leaving  the  execu- 
tion of  the  judgment  as  in  the  case  of  an  arbitral 
award  or  of  a  decision  of  our  Supreme  Court  to 
the  good  faith  of  the  contracting  parties,  and  it 
is  done.  The  example  of  the  American  States 
shows  the  way  to  do  it.  The  procedure  of  the 
court  of  the  several  States  shows  the  feasibility 
of  doing  it.  The  agony  of  Europe  shows  that  it 
must  be  done  if  the  blood  and  treasure  of  the 
future  are  to  be  saved  from  the  catastrophes  of 
the  past. 

And  what  is,  after  all,  this  more  perfect  Union 

of    the   American   States,   whose   formation   Mr. 

The  more  Madison  records  in  his  Notes,  that  it  should  be 

perfect       j^g|^  ^p   35  ^j^  example  or  as  a  model  to  the 

union  or  '^        ^t.         ->»  a->  /tt- 

Society  of  Society  of  Nations?  Let  the  Articles  of  Union 
Nations,  answer  that  it  was  ordained,  as  specifically  set 
forth  in  the  Preamble,  "  to  establish  Justice, 
insure  domestic  Tranquillity,  provide  for  the 
common  defence,  promote  the  general  Welfare, 
and  secure  the  Blessings  of  Liberty  to  our- 
selves and  our  Posterity."  What  the  States 
of  the  New  World  have  done,  the  nations  of 
the  Old  World  can  aflford  to  consider,  even 
although    they   be   unwilling   or   find    it   impos- 


And  a  More  Perfect  Society  of  Nations       8i 

sible  to  endow  their  union,  society,  association, 
or  league  with  such  extensive  powers  or  preroga- 
tives. 

The  problem  which  faced  the  States  faces  the 
nations.     How  can  each  of  them  divest  itself  of 
certain    sovereign    powers    to    be    used    for    the 
common  good  of  all,  not  in  the  interest  of  any 
one,  without  merging  the  nations  in  a  union  in 
which   they  shall  become   as  provinces?     Were 
not    the    Americans    of    the    several    States    one 
people,   it  may  be  asked?     Was  not  the  union 
made    by    the    people    as    such,    irrespective    of 
States,  forming  a  nation  with  all  the  sovereign 
powers  of  such,  and  in  which  the  States  are  as 
counties,    or    shires,    departments    or    provinces 
of  a  unitary  nation?    To  this  it  may  be  briefly 
said  that  the  union  is  one  of  States;    that  the 
word  "  nation  "  is  not  to  be  found  in  the  Consti- 
tution;   that  the  people  of  the  States,  acting  as 
citizens  of  the  States  and  within  State  lines,  not 
the  people  generally  compounded  as  one  mass, 
created  the  more  perfect  union,  as  the  Constitu- 
tion says,  and  that  the  States  which  compose  this 
union   are   States   of  a  composite  nation,   if   the 
term   "nation"   must  be  used   in   preference   to 
the  language  of  the  Constitution. 

But  however  this  may  be,  the  nations  do  not 
need  to  go  so  far  as  the  States  of  the  American 
Union.  They  may  prefer  that  the  society  of 
which  they  are  the  component  parts  shall  remain 
a  very  loose  union.  But  the  framework  is  at 
hand,  for  is  not  the  Society  of  Nations  already 


♦ : 


82      Madison's  Debates  in  Federal  Convention 


Certain 
parallels. 


a  union  which  needs  only  to  become  conscious  of 
its  existence  to  be  made  more  perfect?  And 
however  many  or  few  the  powers  granted  by 
the  nations,  it  will  assuredly,  indeed  inevitably, 
be  more  limited  than  the  more  perfect  union  of 
the  American  States,  even  though  that  was  and 
still  is  a  limited  union.  Is  not  the  Hague  Peace 
Conference  something  very  much  like  a  legislature 
ad  referendum — a  body  that  drafts  and  proposes 
projects  for  the  nations  to  accept  or  reject?  Is 
not  the  so-called  Permanent  Court  of  Arbitration 
something  like  the  temporary  commissions  under 
the  Articles  of  Confederation  and  a  first  step 
to  a  judiciary  of  the  Society  of  Nations  "  accessi- 
ble to  all,  in  the  midst  of  the  independent 
Powers "? 

If  some  committee  were  thought  desirable  be- 
tween the  regular  and  stated  meetings  of  the  con- 
ference, the  so-called  Permanent  Administrative 
Council  would  suffice,  with  such  added  functions 
as  experience  should  suggest,  "  composed,"  as  it 
ij,  "  of  the  diplomatic  representatives  of  the  sig- 
natory Powers  accredited  to  The  Hague  and  of 
the  Netherland  Minister  for  Foreign  Affairs  "  as 
President,"  to  be  charged  with  the  direction  and 
control  of  such  business  of  the  Union  of  Society 
as  the  contracting  Powers  might  consider  it  safe 
to  entrust  vO  a  council  of  this  nature.  But  if  the 
Society  of  Nations  be  consciously  reorganized  or 
strengthened,  such  limited  powers  as  it  may  pos- 
sess should  operate  upon  the  individual  as  in  the 
more  perfect  Union  of  the  American  States,  by 


And  a  More  Perfect  Society  of  Nations       83 

giving  the  provisions  of  the  Convention  the  force 
of  law,  to  be  ratified  if  need  be  by  the  people 
of  the  States,  thus  taxing  a  person,  not  a  nation, 
with  the  performance  of  a  duty,  or  abstinence 
from  an  act,  instead  of  a  State,  as  otherwise  the 
problem  of  coercing  a  country— that  is  to  say 
war — might  arise. 

No  State  if  possible,  certainly  no  powerful  one, 
should   be   invested   with   the   right  or  duty  of 
supervising  or  executing  the  terms  of  the  agree- 
ment of  the  nations.    The  success  of  the  American 
experiment  is,   it  is  believed,   due   in  no  small 
measure  to  the  fact  that  no  State  of  the  Union 
IS  President  thereof,  and  also  to  tne  fact  that  no 
limited  power  of  the  union  is  placed  under  the 
guarantee  or  protection  of  any  one  State   such  as  '^*'*'**'" 
Massachusetts,  Pennsylvania,  or  Virginia,  but  in  nor""'' 
a  government  of  the  Union,  without  territory  of  ^'*""'' 
Its  own  other  than  a  few  square  miles  constituting 
the  District  of  Columbia,  in  which  the  govern- 
ment of  the  Union  lives,  moves  and  has  its  being 
Inevitably  or  ordinarily  the  primus  inter  pares 
ends  by  swallowing  up  its  equals  of  the  begin- 
ning. 

Of  the  nature  of  the  Union,  let  Mr.  Madison 
speak,  who  had  more  to  do  with  its  making  than 
any  one  man,  but  whose  opinion  in  any  event 
IS  of  Itself  entitled  to  great  and  deserved  weight 
In  the  thirty-eighth  number  of  The  Federalist  a 
series  of  papers  written  by  Mr.  Hamilton,  Mr 
Madison  and  Mr.  Jay,  shortly  after  the  adjourn- 
ment of  the  Convention  and  in  order  to  influence 


The 

Preamble 
and  its 
limita- 
tions. 


84       Madison's  Debates  in  Federal  Convention 

the  States  to  ratify  the  Constitution,  Mr.  Madison 
said: 

The  proposed  Constitution,  therefore,  is,  in 
strictness,  neither  a  national  nor  a  federal  Con- 
stitution, but  a  composition  of  both.  In  its 
foundation  it  is  federal,  not  national;  in  the 
sources  from  which  the  ordinary  powers  of  the 
government  are  drawn,  it  is  partly  federal  and 
partly  national;  in  the  operation  of  these  powers, 
it  is  national,  not  federal:  in  the  extent  of  them, 
again,  it  is  federal,  not  national;  and,  finally,  in  the 
authoritative  mode  of  introducing  amendments, 
it  is  neither  wholly  federal  nor  wholly  national. 

We  Americans  would  like  to  think  and  to 
express  the  thought,  although  it  may  seem  im- 
modest, perhaps  even  boastful,  that  the  Consti- 
tution of  the  mjre  perfect  Union  has  the  virtue 
and  strength  of  each,  with  the  vice  and  weakness 
of  neither. 

Foreign  students  of  our  Constitution  are  apt  to 
be  confused  by  the  phraseology  of  the  Pre- 
amble to  that  instrument.  The  opening  sentence 
of,  or  Preamble  to  the  Constitution  is  a 
flourish  of  rhetoric  due  to  a  facile  pen,  not  a 
grant  of  power  made  by  the  States,  which  is  only 
conveyed  in  the  body  of  the  Constitution.  When 
the  first  draft  thereof  was  reported  in  the  session 
of  August  6th,  the  opening  sentence  and  the  First 
Article,  later  wisely  and  happily  compressed  into 
the  Preamble,  were  thus  worded: 


We  the  people  of  the  States  of  New  Hampshire, 
Massachusetts,     Rhode-Island     and     Providence 


^nd  a  More  Perfect  Society  of  Nations      85 

Plantations,  Connecticut,  New- York,  New-Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia, 
North-Carolina,  South-Carolina,  and  Georgia,  do 
ordain,  declare,  and  establish  the  following  Con- 
stitution for  the  Government  of  Ourselves  and  our 
Posterity. 

The  stile  of  the  Government  shall  be  "The 
United  States  of  America  ". ' 

Under    date    of    August    7th,    Mr.    Madison 

informs  us  that  "  the  preamble  of  the  Report  was 

agreed  to  nem.  con.     So  were  Art.  I  &  ii,'"  the 

latter  to  the  effect  that  the  government  was  to 

consist   of   a   legislative,   executive   and   judicial 

department.    Without  further  discussion  and  with 

no  changes  in  the  Preamble  and  First  Article,  the 

Constitution  as  amended  after  weeks  of  debate 

was    submitted    to    a    '     -nmittee    on    Style    and 

Arrangement,  elected  .      ballot  in  the  session  of 

September  8th,  consisting  "of  M^  Johnson,  M- 

Hamilton,  M-  Gov^  Morris,  M^  Madison  and  M^ 
Kmg  ".  * 

This  was  an  excellent  committee  and  the  pres- 
ence upon  it  of  Mr.  Madison— the  only  committee 
of  which  he  was  a  member— made  it  a  certainty 
that  no  change  of  style  would  affect  the  sense 
of  the  document,  with  which  he  was  more 
familiar  than  any  other  member  could  be,  if 
only  from  his  self-imposed  duty  as  reporter. 

The  Convention  adjourned  Saturday.  Septem- 
ber  8th,    shortly   after   the    appointment   of   the 

[  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  44, 

;  Documentary  History  of  the  Constitution,  vol.  iii.,   p.  458 

Documentary  Ui'tory  of  the  Constitution,  vol.   iii.,   p.  710 


86      Madison's  Debates  in  Federal  Convention 


Diffi- 
culty 
overcome 
in 
Preamble. 


committee,  and  met  on  Monday,  the  loth,  which 
Messrs.  Hamilton,  King  and  Madison  attended 
and  in  whose  proceedings  they  participated. 
Messrs.  Johnson  and  Gouverneur  Morris  were 
either  absent  or  failed  to  take  part  in  the 
proceedings;  they  were  probably  busied  with 
the  "  stile "  and  arrangement  of  the  Constitu- 
tion. 

On  Tuesday,  the  nth,  the  committee  reported 
the  Constitution  with  the  Preamble  which 
every  schoolboy  of  the  "  Several  States  "  knows 
by  heart.  There  was  no  debate  on  it.  The  dele- 
gates probably  were  mightily  pleased  with  it,  as 
Gouverneur  Morris,  who  is  responsible  for  the 
style  of  the  instrument,  was  an  accomplished  lit- 
terateur and  made  of  the  Constitution  a  piece  of 
liter.iture,  just  as  Thom.as  Jefferson  did  with  the 
Declaration  of  Independence.  But  the  Preamble 
betrays  not  merely  the  hand  of  the  stylist.  It 
met  and  overcame  a  serious  and  embarrassing  dif- 
ficulty. The  original  draft  of  August  6th,  and 
the  othenvise  amended  draft  as  submitted  to  the 
Committee  on  Style  and  Arrangement,  spoke  in 
the  name  and  in  behalf  of  the  people  of  the  States, 
enumerated  in  their  geographical  order  from 
north  to  south,  beginning  with  New  Hn-  ^_!iire 
and  ending  with  Georgia.  The  headstrong  little 
commonwealth  of  Rhode  Island  and  Providence 
Plantations  was  included,  in  spite  of  the  fact  that 
it  had  not  sent  delegates  to  the  Convention  and 
might  not  ratify  the  Constitution.  Fortunately, 
this  difficulty  became  immaterial  for  the  purposes 


And  a  More  Perfect  Society  of  Nations       87 

of  the  Preainble  by  the  simple  expedient  of  insert- 
ing the  word  "United"  before  "States"  and 
omitting  the  names  of  the  States  from  the  balance, 
80  that  instead  of  reading,  "  We,  the  people  of  the 
States  of  New  Hampshire ",  etc.,  the  Constitu- 
tion as  amended  would  read,  "We,  the  people 
of  the  United  States."  A  difficulty  of  a  not  dis- 
similar kind  had  presented  itself  in  the  early 
days  of  the  Convention  to  which  the  reader's 
attention  has  already  been  called  and  had  been 
solved  in  much  the  same  way.  The  Virginian 
plan  had  proposed  a  national  legislature,  a 
national  executive  and  a  national  judiciary,  and 
the  Committee  of  the  Whole  reported  to  the  Con- 
vention, under  date  of  June  13th,  its  opinion  that 
"  a  national  Governm-  ought  to  be  established, 
consisting  of  supreme  Legislative,  Executive  & 
Judiciary."*  A  week  later,  on  June  20th,  Mr. 
Ellsworth  of  Connecticut,  seconded  by  Mr.  Gor- 
ham  of  Massachusetts,  moved  to  alter  it  so  as  to 
run  "  that  the  Government  of  the  United  States 
ought  to  consist  of  a  supreme  Legislative,  Execu- 
tive and  Judiciary."  In  behalf  of  his  motion, 
which  commended  itself  to  the  Convention,  as 
it  was  unanimously  adopted,  he  said,  as  reported 
by  Mr.  Madison,  that  't  "  would  drop  the  word 
national  and  retain  the  proper  title  of  '  The 
United  States.'"' 

The    Committee    on    Style    and    Arran<i;ement, 
apparently  agreeing  with  Mr.  Ellsworth,  whose 

'  Documentary  History  of  the  Constitution,  vol.   iii.,    i.  120. 
'  Documentary  History  of  the  Constitution,  vol.  iii.,  p.  166. 


¥■    ■ 
HI?    1 


88       Madison's  Debates  in  Federal  Convention 

colleague  Dr.  Johnson,  likewise  of  Connecticut, 
was  Chairman  of  the  committee,  also  thought 
the  title  to  be  the  "  United  States,"  and  so  think- 
ing substituted  it  in  lieu  of  the  names  of  the  thir- 
teen. This  happy  modification  made  the  Pream- 
ble ample,  even  although  the  thirteen  original 
States  should  sprout  like  Jesse's  staff.  This  con- 
jecture, for  the  matter  was  apparently  too  tri- 
fling to  be  mentioned  by  Mr.  Madison,  by  any 
member  of  the  committee,  or  by  any  delegate  to 
the  conference,  is  substantiated  by  Mr.  Chief 
Justice  Marshall,  who  regarded  the  American 
bi"ween  P^^P^^  ^s  acting  in  States,  not  as  "compounded 
the  States  into  One  common  mass  ";  and  he  even  went  so  far 
as  to  say  in  his  judicial  masterpiece,  what  indeed 
one  must  be  very  sure  of  himself  to  say,  that  "  no 
political  dreamer  was  ever  wild  enough  to  think 
of  breaking  down  the  lines  which  separate  the 
States." 

But  whatever  the  true  explanation  of  the 
change  of  phraseology  may  be,  the  Preamble  is 
in  other  respects  a  flourish  of  the  pen,  and  con- 
veys no  power  to  the  "  United  States  "  which  is 
not  embodied  in  express  or  implied  terms  in  the 
granting  clauses  of  the  Constitution.  We  do  not 
need,  as  in  the  above  case,  to  resort  to  conjecture, 
inasmuch  as  Mr.  Justice  Harlan,  an  advocate  of 
"  consolidation,"  to  use  the  expression  with  which 
Mr.  Madison  and  his  contemporaries  were  famil- 
iar, said  for  the  Supreme  Court  of  the  United 
States,  in  the  case  of  Jacobson  v.  Massachusetts 
(197  U.  S.  11,227),  decided  in  1905. 


And  a  More  Perfect  Society  of  Nations      89 

A'  'lough  that  Preamble  indicates  the  general 
purposes  for  which  the  people  ordained  and  estab- 
lished the  Constitution,  it  has  never  been  regarded 
as  the  source  of  any  substantive  power  conferred 
on  the  Government  of  the  United  States  or  on 
any  of  its  Departments.  Such  powers  embrace 
only  those  expressly  granted  in  the  body  of  the 
Constitution  and  such  as  may  be  implied  from 
those  so  granted.  Although,  therefore,  one  of  the 
declared  objects  of  the  Constitution  was  to  secure 
the  blessings  of  liberty  to  all  under  the  sover- 
eign jurisdiction  and  authority  of  the  United 
States,  no  power  can  be  exerted  to  that  end  by 
the  United  States  unless,  apart  from  the  Pream- 
ble, it  be  found  in  some  express  delegation  of 
power  or  in  some  power  to  be  properly  implied 
therefrom. 


The  American  Union  Interpreted  by  the 
Supreme  Court 


In  the  case  of  Martin  v.  Hunter  (i  Wheaton, 
304,  329),  decided  in  1816,  Mr.  Justice  Story  felt 
called  upon  to  consider  the  origin,   the  nature, 
and  the  purpose  of  the  Constitution,  and,  speak-  S^'^r*  °^ 
ing  for  the  court,  he  declared  in  language  that  stitution. 
can  neither  be  paraphrased  nor  improved: 


The  object  of  the  constitution  was  to  establish 
three  great  departments  of  government;  the  legis- 
lative, the  executive,  and  the  judicial  depart- 
ments. The  first  was  to  pass  laws,  the  second,  to 
approve  and  execute  them,  and  the  third  to 
expound  and  enforce  them. 


I 


4 


90      Madison's  Debates  in  Federal  Convention 

Admitting  that  Mr.  Justice  Story's  statement 
is  correct,  of  the  object  which  the  framers  of  the 
Constitution  had  in  mind,  the  result  can  in  like 
manner  best  be  expressed  in  the  language  of  the 
Supreme  Court,  for  that  tribunal  has  the  final 
word  in  defining,  construing  and  applying  the 
Constitution  of  the  United  States.  Of  the  many 
statements  of  a  like  nature  in  which  the  reports 
of  the  Supreme  Court  abound,  the  following, 
running  over  more  than  a  century,  can  be  taken 
as  representing  the  views  of  that  august  tribunal 
from  the  organization  of  the  gover  nent  under 
the  Constitution  to  the  present  day. 

Thus,  Mr.  Justice  Iredell  said,  in  Chisholm  v. 
Georgia  (2  Dallas,  419,  435),  decided  in  1793: 

Every  State  in  the  Union,  in  every  instance 
where  its  sovereignty  has  not  been  delegated  to 
the  United  States,  I  consider  to  be  as  compleatly 
sovereign,  as  the  United  States  are  in  respect  to 
the  powers  surrendered.  The  United  States  are 
sovereign  as  to  all  the  powers  of  Government 
actually  surrendered:  Each  State  in  the  Union 
is  sovereign  as  to  all  the  powers  reserved.  It 
must  necessarily  be  so,  because  the  United  States 
have  no  claim  to  any  authority  but  such  as  the 
States  have  surrendered  to  them:  Of  course  the 
part  not  surrendered  must  remain  as  it  did  before. 

Mr.  Justice  Story  further  said,  in  the  case  of 
Martin  v.  Hunter  (i  Wheaton,  304,  325-326), 
decided  in  1816: 


On  the  other  hand,   it  is  perfectly  clear  that 
the  sovereign  powers  vested  in  the  state  govern- 


And  a  More  Perfect  Society  of  Nations      91 

ments,  by  their  respective  constitutions,  remained 
unaltered  and  unimpaired,  except  so  far  as  they 
were  granted  to  the' government  of  the  United 
States. 

These  deductions  do  not  rest  upon  general 
reasoning,  plain  and  obvious  as  they  seem  to  be. 
They  have  been  positively  recognised  by  one  of 
the  articles  in  amendment  of  the  constitution, 
which  declares,  that  "  the  powers  not  delegated 
to  the  United  States  by  the  constitution,  nor 
prohibited  by  it  to  the  states,  are  reserved  to  the 
states  respectively,  or  to  the  people." 

The  government,  then,  of  the  United  States  can 
claim  no  powers  which  are  not  granted  to  it  by 
the  constitution,  and  the  powers  actually  granted, 
must  be  such  as  are  expressly  given,  or  given  by 
necessary  implication. 

Mr.  Chief  Justice  Marshall,  in  delivering  the 
unanimous  opinic  of  the  court  over  which  he 
presided,  observed  in  the  case  of  McCulloch  v. 
Maryland  (4  Wheaton,  316,  410),  decided  in 
1819,  that: 

In  America,  the  powers  of  sovereignty  are 
divided  between  the  government  of  the  Union, 
and  those  of  the  States.  They  are  each  sovereign, 
with  respect  to  the  objects  committed  to  it,  and 
neither  sovereign  with  respect  to  the  objects  com- 
mitted to  the  other. 

Mr.  Chief  Justice  Chase,  upon  whose  sturdy 
shoulders  the  mantle  of  the  great  Chief  Justice 
fell,  impressively  stated,  speaking  for  the  court 
in  the  case  of  Texas  v.  JVhite  (7  Wallace,  700, 
725),  decided  in  1868: 


II 


II 


ii 


i'  > 


I- 
mi 


;  '.I 


92       Madison's  Debates  in  Federal  Convention 

Under  the  Articles  of  Confederation  each 
State  retained  its  sovereignty,  freedom,  and  inde- 
pendence, and  every  power,  jurisdiction,  and  right 
not  expressly  delegated  to  the  United  States. 
Under  the  Constitution,  though  the  powers  of  the 
States  were  much  restricted,  still,  all  powers  not 
delegated  to  the  United  States,  nor  prohibited 
to  the  States,  are  reserved  to  the  States  respec- 
tively, or  to  the  people.  And  we  have  already 
had  occasion  to  remark  at  this  term,  that  "  the 
people  of  each  State  compose  a  State,  having  its 
own  government,  and  endowed  with  all  the  func- 
tions essential  to  separate  and  independent  exis- 
tence," and  thai  "  without  the  States  in  union, 
there  could  be  no  such  political  body  as  the 
United  States."  Not  .  'y,  therefore,  can  there 
be  no  loss  of  separate  and  independent  autonomy 
to  the  States,  through  their  union  under  the  Con- 
stitution, but  it  may  be  not  unreasonably  said 
that  the  preservation  of  the  States,  and  the  main- 
tenance of  their  governments,  are  as  much  within 
the  design  and  care  of  the  Constitution  as  the 
preservation  of  the  Union  and  the  maintenance  of 
the  National  government.  The  Constitution,  in 
all  its  provisions,  looks  to  an  indestructible  Union, 
composed  of   indestructible   States. 

Mr.  Justice  Nelson  held,  in  the  case  of  Collec- 
tor V.  Day  (11  Wallace,  113,  124),  decided  two 
years  later,  that: 

The  general  government,  and  the  States, 
although  both  exist  within  the  same  territorial 
limits,  are  separate  and  distin^c  sovereignties, 
acting  separately  and  independently  of  each  other, 
within  their  respective  spheres.  The  former  in 
its  appropriate  sphere  is  supreme;  but  the  States 


And  a  More  Perfect  Society  of  Nations       93 

within  the  limits  of  their  powers  not  granted,  or, 
in  the  language  of  the  tenth  amendment,  "  re- 
served," are  as  independent  of  the  general  gov- 
ernment as  that  government  within  its  sphere  is 
independent  of  the  States. 

And  finally,  Mr.  Justice  Brewer,  speaking  for 
the  court  in  the  case  of  South  Carolina  v.  United 
States  (199  U.  S.  437,  448),  decided  in  1905,  thus 
summed  up  the  results  of  a  century  of  judicial 
opinion  on  the  relation  of  the  Union  to  the  States 
and  the  role  of  a  judiciary  in  the  American  sys- 
tem: 


We  have  in  this  Republic  a  dual  system  of  gov- 
ernment. National  and  state,  each  operating 
within  the  same  territory  and  upon  the  same  per- 
sons; and  yet  working  without  collision,  because 
their  functions  are  diflferent.  There  are  certain 
matters  over  which  the  National  Government  has 
absolute  control  and  no  action  of  the  States  can 
interfere  therewith,  and  there  are  others  in  which 
the  State  is  supreme,  and  in  lespect  to  them  the 
National  Government  is  powerless.  To  preserve 
the  even  balance  between  these  two  governments 
and  hold  each  in  its  separate  sphere  is  the 
peculiar  duty  of  all  courts,  preeminentlv  of  this 
— a  duty  oftentimes  of  great  delicacy  and  diffi- 
culty. 


94       Madison's  Debates  in  Federal  Convention 


'I' 
V 


In  Conclusion 

The  men  meeting  in  conference  in  Philadelphia 
in  the  summer  of  1787,  acting  under  general 
instructions — for  they  could  not  hope  to  receive 
specific  instructions  on  the  many  and  vexed  ques- 
tions which  confronted  them  from  day  to  day — 
faced  indeed  a  more  colossal  task  than  they  them- 
selves knew,  for  they  not  only  made  a  Constitu- 
tion for  twelve  States  but  one  which  meets  the 
needs  of  a  larger  union  than  they  could  have 
anticipated.  This  Union,  composed  today  of 
forty-eight  States,  equals  in  number  the  member- 
ship of  the  Society  of  Nations;  and  the  official 
delegates  of  twelve  of  the  sovereign,  free  and 
independent  States  of  America  met  and  solved 
in  their  conference  the  problems  with  which  the 
official  delegates  of  the  States  composing  the 
Society  of  Nations  will  be  confronted  when  one 
day  their  official  delegates  meet  in  conference 
and  resolve  themselves  into  a  Committee  on  the 
State  of  the  Society. 

The  framers  of  the  Constitution  recognized  that 
they  should  only  hope  to  form  a  Union  for  limited 
purposes  and  that  the  Government  of  this  Union 
could  only  consist  of  enumerated  powers.  They 
created  a  legislature,  not  to  pass  statutes  without 
let  or  hindrance,  but  to  legislate  upon  the  sub- 
jects enumerated  in  the  grant  of  legislative  power 
and  to  pass  such  laws  as  might  be  necessary  or 
proper  under  the  grant  of  power  and  of  powers 


And  a  More  Perfect  Society  of  Nations      95 

contained  in  the  Constitution,  They  created  an 
executive  to  carry  intp  effect  the  laws  thus  passed 
in  pursuance  of  the  legislative  grant,  to  exercise 
the  rights  and  to  perform  the  duties  appertain- 
ing to  his  office.  They  created  a  judiciary  to 
interpret  the  Constitution,  to  keep  each  govern- 
ment within  its  proper  sphere,  thus  preventing 
a  collision  between  the  different  branches,  and 
confining  the  Union  of  limited  powers  and  the 
States  with  their  reserved  powers  within  their 
appropriate  spheres.  They  made  the  Constitu- 
tion of  the  United  States  the  law  of  the  Union 
and  of  each  State,  so  successfully  indeed  that 
the  right  and  the  duty  of  each  can  be  and  is  fixed 
by  judicial  decision.  To  do  this  they  had  to 
define  and  to  separate  general  from  particular 
or  local  interests,  vesting  the  Union  with  the 
former  and  leaving  the  latter  with  the  States. 
They  had  to  overcome  the  interests  of  the  sections, 
which  were,  in  some  cases,  so  opposed  as  m  be 
irreconcilable,  for  freedom  on  the  one  hand  and 
slavery  on  the  other  could  not  be  reconciled  per- 
manently. 

They  were  met  on  the  very  threshold  of  the 
conference  itself  with  the  conflict  betAveen  the 
large  and  the  small  States,  a:  d  they  settled  it  in 
the  closing  days  of  the  Convention  to  the  satis- 
faction of  the  contending  parties.  They  did  not, 
indeed,  have  all  the  difficulties  of  language,  of 
race,  of  religion  or  traditions  confronting  larger 
international  conferences,  but  more  than  one 
language  nas   then    and   is   now  spoken   on   the 


m  , 


96      Madison's  Debates  in  Federal  Convention 


'■I   > 
■•7   t 

I 

,;      I  > 


The  Ris- 
ing Sun. 


Atlantic  seaboard,  and  the  colonists  were  drawn 
from  many  countries  and  from  different  races. 
Religions  were  as  various  then  as  now,  and  the 
traditions  were  not  the  traditions  of  any  one 
country.  These  diflferences,  had  they  existed  in 
a  very  marked  degree,  would  have  made  the 
solution  more  difficult  but  not  insurmountable  to 
men  of  good  will  intent  on  a  union  of  their 
States  for  general  purposes.  The  experience  of 
Switzerland,  extending  over  many  centuries, 
where  all  of  these  problems  have  presented  them- 
selves, and  where  they  have  been  overcome  to 
such  a  degree  that  the  Switzerland  of  today  has 
maintained  its  neutrality  completely  surrounded 
by  belligerents  of  the  very  nationalities  of  which 
their  Confederation  is  formed,  has  amply  shown 
the  accuracy  of  this  observation. 

The  members  of  the  Federal  Convention  were 
well  aware  that  the  labor  of  their  hands  might  be 
rejected  by  the  Conventions  of  the  several  States 
to  which  the  Constitution  was  to  be  referred  for 
ratification,  and  this  fear  is  evidenced  by  the  last 
resolution  adopted  in  the  last  session  of  the  Con- 
vention; that  the  President  "retain  the  Jour- 
nal and  other  papers,  subject  to  the  order  of 
Congress,  if  ever  formed  under  the  Constitu- 
tion." 

The  Constitution  was  a  completed  instrument, 
and  lacked  only  the  signatures  of  the  delegates 
approving  it.  "Whilst  the  last  members  were 
signing  it,"  Mr.  \' adison  says,  *' Doct^  Franklin 
locking   towards   tne    President's   Chair,    at   the 


t 

'I 

I 


ff* 


f 


—mt"        •-,,. 


And  a  More  Perfect  Society  of  Nations      97 

back  of  which  a  rising  sun  happened  to  be 
painted,  observed  to,  a  few  members  near  him, 
that  Painters  had  found  it  difficult  to  distinguish 
in  their  art  a  rising  from  a  setting  sun.  "  I  have," 
said  he,  "  often  and  often  in  the  course  of  the  Ses- 
sion, and  the  vicissitudes  of  my  hopes  and  fears 
as  to  its  issue,  looked  at  that  behind  the  President 
without  being  able  to  tell  whether  it  was  rising 
or  setting:  But  now  at  length  I  have  the  hap- 
piness to  know  that  it  is  a  rising  and  not  a  setting 
Sun." 

It  is  still  a  rising  sun. 

The  imperfect  union  under  the  Articles  gave 
way  to  the  more  perfect  union  of  the  Constitution, 
just   as   the   imperfect  union   of   the   Society  of 
Nations  may  give  way  to  a  more  perfect  associa- 
tion devised  in  a  conference  of  nations,  just  as 
in  the  case  of  the  American  States.     More  than  JemiS*"' 
a  beginning  has  been  made.    A  Society  of  Nations  ^*"  }^* 
is  not  a  theory,  it  is  a  fact  stated  in  unmistakable  sSment 
terms  in  the  preamble  to  the  Pacific  Settlement  nlJonai" 
Convention,  drafted  in  1899  by  the  official  dele-  Dwpntet. 
gates  of  twenty-six  States  meeting  in  conference 
and  acting  under  instructions.     This  Convention 
declared  their  governments  as: 

Animated  by  a  strong  desire  to  concert  for  the 
maintenance  of  the  general  peace; 

Resolved  to  second  bv  their  best  efforts  the 
friendly  settlement  of  international  disputes; 

Recognizing  the  solidarity  which  unites'  the 
members  of  the  society  of  civilized  nations; 

Desirous  of  extending  the  empire  of  law  and 


i 

I 


r 

i 


'    » 


^ 
« 

^ 

^ 

i 

^ 


Benjamin 
Franklin's 
forecast. 


98       Madison's  Debates  in  Federal  Convention 

of  strengthening  the  appreciation  of  international 

justice:  .      •    .•         e  ^ 

Convinced  that  the  permanent  institution  of  a 
Court  of  Arbitration,  accessible  to  all,  in  the 
midst  of  the  independent  Powers,  will  contribute 
effectively  to  this  result; 

Having  regard  to  the  advantages  attending  the 
general  ?nd  regular  organization  of  arbitral  pro- 
cedure ...  , 
Sharing  the  opinion  of  the  august  initiator  ot 
the  International  Peace  Conference  that  it  is  expe- 
dient to  record  in  an  international  agreement  the 
principles  of  equity  and  right  on  which  are  based 
the  security  o.  States  and  the  welfare  of  peoples. 

That  the  nations  of  Europe  could  be  drawn 
into  close-  relations  and  that  the  experience  of  the 
United  States  might  serve  as  a  precedent  for 
such  an  interesting  event,  was  foreseen,  and  the 
process  stated,  by  Dr.  Franklin  in  a  letter  which 
he  wrote  to  a  correspondent  in  Europe  under  date 
of  Oc  .'icr  22,  1787: 

I  send  you  enclos'd  the  propos'd  new  Federal 
Constitution  for  these  States.  I  was  engag'd  4 
Months  of  the  last  Summer  in  the  Convention 
that  form'd  it.  It  is  now  sent  by  Congress  to  the 
several  States  for  their  Confirmation.  If  it  suc- 
ceeds, I  do  not  see  why  you  might  not  in  Europe 
carry  the  Project  of  good  Henry  the  4th  into  Exe- 
cution, by  forming  a  Federal  Union  and  One 
Grand  Republirk  of  all  its  different  States  & 
Kingdoms;  by  means  of  a  like  Convention;  for 
we  had  many  interests  to  reconcile.  ^ 

'  Benjamin  Franklin  to  Mr.  Grand,  October  22,  1787  (Documenlary 
History  of  the  Constitution,  vol.  iv.,  pp.  341-342). 


/In J  a  More  Perfect  Society  of  Nations      99 

The  Cunstitution  of  the  more  perfect  Union 
has  succeeded,  and  if  different  States  and  king- 
doms should  be  inclined  to  substitute  the  regu-  MadUon 
lated  interdependence  of  States  for  their  unrrgu-  SbJrty'of 
lated  independence  they  need  only  turn  for  light  the  world, 
and  leading  to  the  little  man  of  Montpelier,  who 
has  preserved  for  all  time  an  exact  account  of 
what  took  place  in  the  conference  of  the  States 
in  Philadelphia  'n  the  summer  of  1787.     Although 
"  the    drudgery "   of    the    undertaking   "  almost 
killed  him,"  it  is  fortunately  a  fact  that,  "by  an 
authentic  exhibition  of  the  objects,  the  opinions 
and  the  reasonings  from  which  the  new  system  of 
government  was  to  receive  its  peculiar  structure 
and  organization,"  we  are  now  aware,  as  Mr. 
Madison  then  was,  "  of  the  value  of  such  a  contri- 
bution to  the  fund  of  materi-.ls  for  the  history  of 
the  Constitution,  on  which  would  be  staked  the 
happiness  of  a  young  people,  great  even  in  its 
infancy  and  possibly  the  cause  of  liberty  through- 
out the  vvoild." 


I 

I 

I 


.1 

-a 


J 


I 


APPENDIX 


I 


i. 


11' 


THE  DECLARATION  OF  INDEPENDENCE— 

1776^ 

In  Congress,  July  4,  1776 

The   unanimous   Declaration    of    the   thirteen    united 
States  of  America 

When,  in  the  Course  of  human  events,  it  becomes 
necessary  for  one  people  to  dissolve  the  political  bands 
which  have  connected  them  with  another,  and  to  assume 
among  the  Powers  of  the  earth,  the  separate  and  equal 
station  to  which  the  Laws  of  Nature  and  of  Nature's 
God  entitle  them,  a  decent  respect  to  the  opinions  of 
mankind  requires  that  they  should  declare  the  causes 
which  impel  them  to  the  separation. 

We  hold  these  truths  to  '"'  self-evident,  that  all  men 
are  created  equal,  that  the>  e  endowed  by  their  Cre- 
ator with  certain  unalienable  Rights,  that  among  these 
are  Life,  Liberty  and  the  pursuit  of  Happiness.  That  to 
secure  these  rights,  Gove-  iments  are  instituted  among 
Men,  deriving  their  just  powers  from  the  consent  of  the 
governed.  That  whenever  any  Form  of  Government 
becomes  destructive  of  these  ends,  it  is  the  Right  of 
the  People  to  alter  or  abolish  it,  and  to  institute 
new  Government,  laying  its  foundation  on  such  prin- 
ciples and  organizing  its  powers  in  such  form,  as  to 
them  shall  seem  most  likely  to  effect  their  Safety  and 
Happiness.  Prudence,  indeed,  will  dictate  that  Gov- 
ernments long  established  should  not  be  changed  for 
light  and  transient  causes;  and  accordingly  all  experi- 
ence hath  shown,  that  mankind  are  more  disposed  to 

'  Revised  Statutes  of  the  United  States,  1878,  pp.  3-6. 


I04     Madison's  Debates  in  Federal  Convention 


suffer,  while  Is  are  sufferable,  than  to  right  them- 
selves by  abolishing  the  forms  to  which  they  are  accus- 
tomed. But  when  a  long  train  of  abuses  and  usurpa- 
tions, pursuing  invariably  the  same  Object  evinces  a  de- 
sign to  reduce  them  under  absolute  Despotism,  it  is 
their  right,  it  is  their  duty,  to  throw  off  such  Govern- 
ment, and  to  provide  new  Guards  for  their  future 
security. — Such  has  been  the  patient  sufferance  of  these 
Colonics;  and  such  is  now  the  necessity  which  constrains 
them  to  alter  their  former  Systems  of  Government. 
The  history  of  the  present  King  of  Great  Britain  is  a 
history  of  repeated  injuries  and  usurpations,  all  having 
in  direct  object  the  establishment  of  an  absolute 
Tyranny  over  these  States.  To  prove  this,  let  Facts 
be  submitted  to  a  candid  world. 

He  has  refused  his  Assent  to  Laws,  the  most  whole- 
some and  necessary  for  the  public  good. 

He  has  forbidden  his  Governors  to  pass  Laws  of 
immediate  and  pressing  importance,  unless  suspended 
in  their  operation  till  his  Assent  should  be  obtained; 
and  when  so  suspended,  he  has  utterly  neglected  to 
attend  to  them. 

He  has  refused  to  pass  other  Laws  for  the  accommo- 
dation of  large  districts  of  people,  unless  those  people 
would  relinquish  the  right  of  Representation  in  the 
Legislature,  a  right  inestimable  to  them  and  formidable 
to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places 
unusual,  uncomfortable,  and  distant  from  the  depository 
of  their  Public  Records,  for  the  sole  purpose  of 
fatiguing  them  into  compliance  with  his  measures. 

He  has  dissolved  Representative  Houses  repeatedly, 
for  opposing  with  manly  firmness  his  invasions  on  the 
rights  of  the  people. 


And  a  More  Perfect  Society  of  Nations     105 


i 


He  has  refused  for  a  long  time,  after  such  dissolu- 
tions, to  cause  others  to  be  elected;  whereby  the  Legis- 
lative Powers,  incapable  of  Annihilation,  have  returned 
to  the  People  at  large  for  their  exercise;  the  State 
remaining  in  the  mean  time  exposed  to  all  the  dangers 
of  invasion  from  without,  and  convulsions  within. 

He  has  endeavoured  to  prevent  the  population  of 
these  States;  for  that  purpose  obstructing  the  Laws 
for  Naturalization  of  foreigners;  refusing  to  pass 
others  to  encourage  their  migration  hither,  and 
raising  the  conditions  of  new  Appropriations  of 
Lands. 

He  has  obstructed  the  Administration  of  Justice,  by 
refusing  his  Assent  to  Laws  for  establishing  Judiciary 
Powers. 

He  has  made  Judges  dependent  on  his  Will  alone, 
for  the  tenure  of  their  offices,  and  the  amount  and  pay- 
ment of  their  salaries. 

He  has  erected  a  multitude  of  New  Offices,  and  sent 
hither  swarms  of  Officers  to  harass  our  People,  and 
eat  out  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  Standing 
Armies  without  the  consent  of  our  legislature. 

He  has  affected  to  render  the  Military  independent 
of  and  superior  to  the  Civil  Power. 

He  has  combined  with  others  to  subject  us  to  a 
jurisdiction  foreign  to  our  constitution,  and  unacknowl- 
edged by  our  laws;  giving  his  Assent  to  their  acts  of 
pretended  Legislation: 

For  quartering  large  bodies  of  armed  troops 
among  us : 

For  protecting  them,  by  a  mock  Trial,  from  Punish- 
ment for  any  Murders  which  they  should  commit  on  the 
Inhabitants  of  these  States: 


I  I 


io6     Madison's  Debates  in  Federal  Convention 

For  cutting  off  our  Trade  with  all  parts  of  the 
world : 

For  imposing  taxes  on  us  without  our  Consent: 

For  depriving  us,  in  many  cases,  of  the  benefits  of 
Trial  by  Jury: 

For  transporting  us  beyond  Seas  to  be  tried  for  pre- 
tended offences: 

For  abolishing  the  free  System  of  English  Laws  in 
a  neighbouring  Province,  establishing  therein  an  Arbi- 
trary government,  and  enlarging  its  Boundaries  so  as 
to  render  it  at  once  an  example  and  fit  instrument  for 
introducing  the  same  absolute  rule  into  these  Colonies : 

For  taking  away  our  Charters,  abolishing  our  most 
valuable  Laws,  and  altering  fundamentally  the  Forms 
of  our  Governments : 

For  suspending  our  own  Legislatures,  and  declaring 
themselves  invested  with  Power  to  legislate  for  us  in 
all  cases  whatsoever. 

He  has  abdicated  Government  here,  by  declaring 
us  out  of  his  Protection  and  waging  War  against  us. 

He  has  plundered  our  seas,  ravaged  our  Coasts, 
burnt  our  towns,  and  destroyed  the  lives  of  our  people. 

He  is  at  this  time  transporting  large  armies  of  for- 
eign mercenaries  to  compleat  the  works  of  death,  deso- 
lation and  tyranny,  already  begun  with  circumstances  of 
Cruelty  &  perfidy  scarcely  paralleled  in  the  most  bar- 
barous ages,  and  totally  unworthy  the  Head  of  a  civil- 
ized nation. 

He  has  constrained  our  fellow  Citizens  taken  Cap- 
tive on  the  high  Seas  to  bear  Arms  against  their  Coun- 
try, to  become  the  executioners  of  their  friends  and 
Brethren,  or  to  fall  themselves  by  their  Hands. 

He  has  excited  domestic  insurrections  amongst  us, 
and  has  endeavoured  to  bring  on  the  inhabitants  of  our 


And  a  More  Perfect  Society  of  Nations     107 

frontiers,  the  merciless  Indian  Savages,  whose  known 
rule  of  warfare,  is  an  undistinguished  destruction  of  all 
ages,  sexes  and  conditions. 

In  every  stage  of  these  Oppressions  We  have  Peti- 
tioned for  Redress  in  the  most  humble  terms:  Our 
repeated  Petitions  have  been  answered  only  by  repeated 
injury.  A  Prince,  whose  character  is  thus  marked  by 
every  act  whicli  may  define  a  Tyrant,  is  unfit  to  be  the 
ruler  of  a  free  People. 

Nor  have  We  been  wanting  in  attention  to  our  Brit- 
ish brethren.  We  have  warned  them  from  time  to 
time  of  attempts  by  their  legislature  to  extend  an  un- 
warrantable jurisdiction  over  us.  We  have  reminded 
them  of  the  circumstances  of  our  emigration  and  settle- 
ment here.  We  have  appealed  to  their  native  justice 
and  magnanimity,  and  we  have  conjured  them  by  the 
ties  of  our  common  kindred  to  disavow  these  usurpa- 
tions, which  would  inevitably  interrupt  our  connec- 
tions and  correspondence.  They  too  have  been  deaf 
to  the  voice  of  justice  and  of  consanguinity.  We  must, 
therefore,  acquiesce  in  the  necessity,  which  denounces 
our  Separation,  and  hold  them,  as  we  hold  the  rest  of 
mankind,  Enemies  in  War,  in  Peace  Friends. 

We,  therefore,  the  Representatives  of  the  united 
States  of  America,  in  General  Congress,  Assembled, 
appcnLng  to  the  Supreme  Judge  of  the  world  for  the 
rectitude  of  our  intentions,  do,  in  the  Name,  and  by 
Authority  of  the  good  People  of  these  Colonies, 
solemnly  publish  and  declare.  That  these  United  Col- 
onies are,  and  of  Right  ought  to  be  Free  and  Independ- 
ent States;  that  they  are  Absolved  from  all  Allegiance 
to  the  British  Crown,  and  that  all  political  connection 
between  them  and  the  State  of  Great  Britain,  is  and 
ought  to  be  totally  dissolved;    and  that  as  Free  and 


It! 


m 


3 


io8     Madison's  Debates  in  Federal  Convention 

Independent  States,  they  have  full  Power  to  levy  War, 
conclude  Peace,  contract  Alliances,  establish  Commerce, 
and  to  do  all  other  Acts  anf*  Things  which  Independent 
States  may  of  right  do.  i.nd  for  the  support  of  this 
Declaration,  with  a  firm  reliance  on  the  Protection  of 
Divine  Providence,  we  mutually  pledge  to  each  other 
our  Lives,  our  Fortunes  and  our  sacred  Honor. 

JOHN  HANCOCK. 


New  Hampshire 

JosiAH  Bartlett  Matthew  Thornton 

Wm.  Whipple 

Massachusetts  Bay 

Saml.  Adams  Robt.  Treat  Paine 

John  Adams  Elbridge  Gerry 

Rhode  Island 
Step.  Hopkins  William  Ellery 

Connecticut 

Roger  Sherman  Wm.  Williams 

Sam'el  Huntington        Oliver  Wolcott 

New  York 

Wm.  Floyd  Frans.  Lewis 

Phil.  Livingston  Lewis  Morris 


New  Jersey 

Richd.  Stockton  John  Hart 

J  no.  Witherspoon 
Fras.  Hopkinson 


Abra.  Clark 


And  a  More  Perfect  Society  of  Nations     109 


ar, 
•ce, 
ent 
;his 
of 
(ler 


Pennsylvania 
RoBT.  Morris  Jas.  Smith 

Benjamin  Rush  Geo.  Taylor 

Benja.  Franklin  James  Wilson 

John  Morton  Geo.  Ross 

Geo.  Clymer 


I 


Caesar  Rodney 
Geo.  Read 


Samuel  Chase 
Wm.  Paca 


Delaware 

Tho.  M'Kean 


Maryland 

Thos.  Stone 
Charles     Carroll 
Carrollton 


of 


Virginia 
George  Wythe  Tiios.  Nelson,  Jr. 

Richard  Henry  Lee        Francis  Lightfoot  Lee 
Th.  Jefferson  Carter  Braxton 

Benja.  Harrison 

North  Carolina 
Wm.  Hooper  John  Penn 

Joseph  Hevves 

South  Carolina 
Edward  Rutledge  Thomas  Lynch,  Junr. 

Thos.  Heyward,  Junr.      Arthur  Middletox 


Georgia 

Button  Gwinnett  Geo.  Walton 

Lyman  Hall 


ARTICLKS  OF  CONFEDERATION— 1777' 

To  all  to  IFhom  these  Presents  shall  come,  we  the  tin- 
dersigncd  Delegates  of  the  States  affixed  to  our 
Names  send  greeting. 

Whereas  the  Delegates  of  the  United  States  of 
America  in  Congress  assembled  did  on  the  fifteenth  day 
of  November  in  the  Year  of  our  Lord  One  Thousand 
Seven  Hundred  and  Seventy-seven,  and  in  the  Second 
Year  of  the  Independence  of  America  agree  to  certain 
articles  of  Confederation  and  perpetual  Union  between 
the  States  of  Newhampshire,  Massachusetts-Bay, 
Rhodeisland  and  Providence  Plantations,  Connecticut, 
New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North-Carolina,  South-Carolina 
and  Georgia  in  the  Words  following,  viz. 

"  Articles  of  Confederation  and  perpetual  Union  be- 
tween the  States  of  Newhampshire,  Massachusetts- 
bay,  Rhodeisland  and  Providence  Plantations,  Con- 
necticut, New-York,  New-Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia,  North-Carolina, 
South-Carolina  and  Georgia. 

Article  I.  The  stile  of  this  confederacy  shall  be 
"  The  United  States  of  America." 

Article  II.  Each  State  retains  its  sovereignty,  free- 
dom and  independence,  and  every  power,  jurisdiction 
and  right,  which  is  not  by  the  confederation  expressly 
delegated  to  the  United  States,  in  Congress  assembled. 

'  Revised  Statutes  of  the  United  States,  pp.  7-12. 


H 


Madison's  Debates  in  Federal  Convention     1 1 1 


Article  III.  The  said  States  hereby  severally  enter 
into  a  firm  league  of  friendship  witlj  each  other,  for 
their  common  defence,  the  security  of  their  liberties, 
and  their  mutual  .-'nd  general  welfare,  binding  them- 
selves to  assist  each  other,  against  all  force  offered  to, 
or  attacks  made  upon  them,  or  any  of  them,  on  account 
of  religion,  sovereignty,  trade,  or  any  other  pretence 
whatever. 

Article  IV.  The  better  to  secure  and  perpetuate 
mutual  friendship  and  intercourse  among  the  people 
of  the  different  States  in  this  Union,  the  free  inhabitants 
of  each  of  these  States,  paupers,  vagabonds  and  fugi- 
tives from  justice  excepted,  shall  be  entitled  to  all  priv- 
ileges and  immunities  of  free  citizens  in  the  several 
States;  and  the  people  of  each  State  shall  have  free 
ingress  and  regress  to  and  from  any  other  State,  and 
shall  enjoy  therein  all  the  privileges  of  trade  and  com- 
merce, subject  to  the  same  duties,  impositions  and  re- 
strictions as  the  inhabitants  thereof  respectively,  pro- 
vided that  such  restrictions  shall  not  extend  so  far  as 
to  prevent  the  removal  of  property  imported  into  any 
State,  to  any  other  State  of  which  the  owner  is  an  in- 
habitant; provided  also  that  no  imposition,  duties  or 
restriction  shall  be  laid  by  any  State,  on  the  property 
of  the  United  States,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with  treason, 
felony,  or  other  high  misdemeanor  in  any  State,  shall 
flee  from  justice,  and  be  found  in  any  of  the  United 
States,  he  shall  upon  demand  of  the  Governor  or  Ex- 
ecutive power,  of  the  State  from  which  he  fled,  be  de- 
livered up  and  removed  to  the  State  having  jurisdiction 
of  his  offence. 

Full  faith  and  credit  shall  be  given  in  each  of 
these  States  to  the  records,  acts  and  judicial  proceed- 


112     Madison's  Debates  in  Federal  Convention 


ings  of  the  courts  and  magistrates  of  every  other 
State. 

Article  V.  For  the  more  convenient  management 
of  the  general  interest  of  the  United  States,  delegates 
shall  be  annually  appointed  in  such  manner  as  the 
legislature  of  each  State  shall  direct,  to  meet  in  Con- 
gress on  the  first  Monday  in  November,  in  every  year, 
with  a  power  reserved  to  each  State,  to  recall  its  dele- 
gates, or  any  of  them,  at  any  time  within  the  year,  and 
to  send  others  in  their  stead,  for  the  remainder  of  the 
year. 

\o  State  shall  be  represented  in  Congress  by  less 
than  two,  nor  by  more  than  seven  members;  and  no 
person  shall  be  capable  of  being  a  delegate  for  more 
than  three  years  in  any  term  of  six  years;  nor  shall 
any  person,  being  a  delegate,  be  capable  of  holding  any 
office  under  the  United  States,  for  which  he,  or  another 
for  his  benefit  receives  any  salary,  fees  or  emolument 
of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  a 
meeting  of  the  States,  and  while  they  act  as  members 
of  the  committee  of  the  States. 

In  determining  questions  in  the  United  States,  in 
Congress  assembled,  each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not 
be  impeached  or  questioned  in  any  court,  or  place  out 
of  Congress,  and  the  members  of  Congress  shall  be 
protected  in  their  persons  from  arrests  and  imprison- 
ments, during  the  time  of  their  going  to  and  from,  and 
attendance  on  Congress,  except  for  treason,  felony,  or 
breach  of  the  peace. 

Article  VI.  No  State  without  the  consent  of  the 
United  States  in  Congress  assembled,  shall  send  any 
embassy  to,  or  receive  any  embassy  from,  or  enter  into 


in 


And  L  More  Perfect  Society  of  Nations     113 

any  conference,  agreement,  alliance  or  treaty  with  any 
king,  prince  or  state;  nor  shall  any  person  holding  any 
office  of  profit  or  trust  under  the  United  States,  or  any 
of  them,  accept  of  any  present,  emolument,  office  or 
title  of  any  kind  whatever  from  any  king,  prince  or  for- 
eign state;  nor  shall  the  United  States  in  Congress 
assembled,  or  any  of  them,  grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty, 
confederation  or  alliance  whatever  between  them,  with- 
out the  consent  of  the  United  States  in  Congress  as- 
sembled, specifying  accurately  the  purposes  for  which 
the  same  is  to  be  entered  into,  and  how  long  it  shall 
continue. 

No  State  shall  lay  any  imposts  or  duties,  which  may 
interfere  with  any  stipulations  in  treaties,  entered  into 
by  the  United  States  in  Congress  assembled,  with  any 
king,  prince  or  state,  in  pursuance  of  any  treaties 
already  proposed  by  Congress,  to  the  courts  of  France 
and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by 
any  State,  except  such  number  only,  as  shall  be  deemed 
necessary  by  the  United  States  in  Congress  assembled, 
for  the  defence  of  such  State,  or  its  trade;  nor  shall 
any  body  of  forces  be  kept  up  by  any  State,  in  time  of 
peace,  except  such  number  only,  as  in  the  judgment  of 
the  United  States,  in  Congress  assembled,  shall  be 
deemed  requisite  to  garrison  the  forts  necessary  for 
the  defence  of  such  Sr-.te;  but  every  State  shall  always 
keep  up  a  well  regulated  and  disciplined  militia,  suffi- 
ciently  armed  and  accoutred,  and  shall  provide  and  con- 
stantly have  ready  for  use,  in  public  stores,  a  due  num- 
ber of  field  pieces  and  tents,  and  a  proper  quantity  of 
arms,  ammunition  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  con- 


•III 


■"■■t 


1 14     Madison's  Debates  in  Federal  Convention 

sent  of  the  United  States  in  Congress  assembled,  un- 
less such  State  be  actually  invaded  by  enemies,  or  shall 
have  received  certain  advice  of  a  resolution  being 
formed  by  some  nation  of  Indians  to  invade  such 
State,  and  the  danger  is  so  imminent  as  not  to  admit 
of  a  delay,  till  the  United  States  in  Congress  assembled 
can  be  consulted:  nor  shall  any  State  grant  commis- 
sions to  any  ships  or  vessels  of  war,  nor  letters  of 
marque  or  reprisal,  except  it  be  after  a  declaration  of 
war  by  the  United  States  in  Congress  assembled,  and 
then  only  against  the  kingdom  or  state  and  the  sub- 
jects thereof,  against  which  war  has  been  so  declared, 
and  under  such  regulations  as  shall  be  established  by 
the  United  States  in  Congress  assembled,  unless  such 
State  Lc  infested  by  pirates,  in  which  case  vessels  of 
war  may  be  fitted  out  for  that  occasion,  and  kept  so  long 
as  the  danger  shall  continue,  or  until  the  United  States 
in  Congress  assembled  shall  determine  otherwise. 

Article  VII.  When  land-forces  are  raised  by  any 
State  for  the  common  defence,  all  officers  of  or  under 
the  rank  of  colonel,  shall  be  appointed  by  the  Legis- 
lature of  each  State  respectively  by  whom  such  forces 
shall  be  raised,  or  in  such  manner  as  such  State  shall 
direct,  and  all  vacancies  shall  be  filled  up  by  the  State 
which  first  made  the  appointment. 

Article  VIII.  All  charges  of  war,  and  all  other 
expenses  that  shall  be  incurred  for  the  common  defence 
or  general  welfare,  and  allowed  by  the  United  States 
in  Congress  assembled,  shall  be  defrayed  out  of  a  com- 
mon treasury,  which  shall  be  supplied  by  the  several 
States,  in  proportion  to  the  value  of  all  land  within 
each  State,  granted  to  or  surveyed  for  any  person, 
as  such  land  and  the  buildings  and  improvemenii 
thereon  shall  be  estimated  according  to  such  mode  as 


And  a  More  Perfect  Society  of  Nations     115 


the  United  States  in  Congress  assembled,  shall  from 
time  to  time  direct  and  appoint. 

The  taxes  for  paying  that  proportion  shall  be  laid 
and  levied  by  the  authority  and  direction  of  the  Legis- 
latures of  the  several  States  within  the  time  agreed  upon 
by  the  United  States  in  Congress  assembled. 

Article  IX.  The  United  States  in  Congress  as- 
sembled, shall  have  the  sole  and  exclusive  right  and 
power  of  determining  on  peace  and  war,  except  in  the 
cases  mentioned  in  the  sixth  article — of  sending  and 
receiving  ambassadors — entering  into  treaties  and  alli- 
ances, provided  that  no  treaty  of  commerce  shall  be 
made  whereby  the  legislative  power  of  the  respective 
States  shall  be  restrained  from  imposing  such  imposts 
and  duties  on  foreigners,  as  their  own  people  are  sub- 
jected to,  or  from  prohibiting  the  exportation  or  impor- 
tation of  any  species  of  goods  or  commodities  what- 
soever— of  establishing  rules  for  deciding  in  all  cases, 
what  captures  on  land  or  water  shall  be  legal,  and  in 
what  manner  prizes  taken  by  land  or  naval  forces  in 
the  service  of  the  United  States  shall  be  divided  or 
appropriated — of  granting  letters  of  marque  and  re- 
prisal in  times  of  peace — appointing  courts  for  the 
trial  of  piracies  and  felonies  committed  on  the  high  seas 
and  establishing  courts  for  receiving  and  determining 
finally  appeals  in  all  cases  of  captures,  provided  that  no 
member  of  Congress  shall  be  appointed  a  judge  of  any 
of  the  said  courts. 

The  United  States  in  Congress  assembled  shall  also 
be  the  last  resort  on  appeal  in  all  disputes  and  differ- 
ences now  subsisting  or  that  hereafter  may  arise  be- 
tween two  or  more  States  concerning  boundary,  juris- 
diction or  any  other  cause  whatever;  which  authority 
shall   always  be  exercised   in   the   manner   following. 


i 


m-^ 


■; :  r 


it 


A 


I!    -•»      ' 


1 1 6    Madison's  Debates  in  Federal  Convention 

Whenever  the  legislative  or  executive  authority  or  law- 
ful agent  of  any  State  in  controversy  with  another  shall 
present  a  petition  to  Congress,  stating  the  matter  in 
question  and  praying  for  a  hearing,  notice  thereof  shall 
be  given  by  order  of  Congress  to  the  legislative  or 
executive  authority  of  the  other  State  in  controversy, 
and  a  day  assigned  for  the  appearance  of  the  parties 
by  their  lawful  agents,  who  shall  then  be  directed  to 
appoint  by  joint  consent,  commissioners  or  judges  to 
constitute  a  court  for  hearing  and  determining  the 
matter  in  question :  but  if  they  can  not  agree.  Congress 
shall  name  three  persons  out  of  each  of  the  United 
States,  and  from  the  list  of  such  persons  each  party 
shall  alternately  strike  out  one,  the  petitioners  begin- 
ning, until  the  number  shall  be  reduced  to  thirteen;  and 
from  that  number  not  less  than  seven,  nor  more  than 
nine  names  as  Congress  shall  direct,  shall  in  the  pres- 
ence of  Congress  be  drawn  out  by  lot,  and  the  persons 
whose  names  shall  be  so  drawn  or  any  five  of  them, 
shall  be  commissioners  or  judges,  to  hear  and  finally 
determine  the  controversy,  so  always  as  a  major  part 
of  the  judges  who  shall  hear  the  cause  shall  agree  in 
the  determination :  and  if  either  party  shall  neglect  to 
attend  at  the  day  appointed,  without  showing  reasons, 
which  Congress  shall  judge  sufficient,  or  being  present 
shall  refuse  to  strike,  the  Congress  shall  proceed  to 
nominate  three  persons  out  of  each  State,  and  the  Secre- 
tary of  Congress  shall  strike  in  behalf  of  such  party 
absent  or  refusing;  and  the  judgment  and  sentence  of 
the  court  to  be  appointed,  in  the  manner  before  pre- 
scribed, shall  be  final  and  conclusive;  and  if  any  of 
the  parties  shall  refuse  to  submit  to  the  authority  of 
such  court,  or  to  appear  or  defend  their  claim  or  cause, 
the  court  shall  nevertheless  proceed  to  pronounce  sen- 


.    '"1. 


And  a  More  Perfect  Society  of  Nations     117 

tence,  or  judgment,  which  shall  in  like  manner  be  final 
and  decisive,  the  judgment  or  sentence  and  other  pro- 
ceedings being  in  either  case  transmitted  to  Con- 
gress, and  lodged  among  the  acts  of  Congress  for  the 
security  of  the  parties  concerned:  provided  that  every 
commissioner,  before  he  sits  in  judgment,  shall  take  an 
oath  to  be  administered  by  one  of  the  judges  of  the 
supreme  or  superior  court  of  the  State,  where  the  cause 
shall  be  tried,  "  well  and  truly  to  hear  and  determine 
the  matter  in  question,  according  to  the  best  of  his  judg- 
ment, without  favour,  affection  or  hope  of  reward : " 
provided  also  that  no  State  shall  be  deprived  of  terri- 
tory for  the  benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil 
claimed  under  '"fferent  grants  of  two  or  more  States, 
whose  jurisdiction  as  they  may  respect  such  lands,  and 
the  States  which  passed  such  grants  are  adjusted,  the 
said  grants  or  either  of  them  being  at  the  same  time 
claimed  to  have  originated  antecedent  to  such  settle- 
ment of  jurisdiction,  shall  on  the  petition  of  either 
party  to  the  Congress  of  the  United  States,  be  finally 
determined  as  near  as  may  be  in  the  same  manner  as 
is  before  prescribed  for  deciding  disputes  respecting 
territorial  jurisdiction  between  different  States. 

The  United  States  in  Congress  assembled  shall  also 
have  the  sole  and  exclusive  right  and  power  of  regu- 
lating the  alloy  and  value  of  coin  struck  by  their  own 
authority,  or  by  that  of  the  respective  States, — fixing 
the  standard  of  weights  and  measures  throughout  the 
United  States, — regulating  the  trade  and  managing  all 
affairs  with  the  Indians,  not  members  of  any  of  the 
States,  provided  that  the  legislative  right  of  any  State 
within  its  own  limits  be  not  infringed  or  violated — 
establishing  and  regulating  post-offices  from  one  State 


SI 


ii8     Madison's  Debates  in  Federal  Convention 

to  another,  throughout  all  the  United  States,  and  exact- 
ing such  postage  on  the  papers  passing  thro'  the  same 
as  may  be  requisite  to  defray  the  expenses  of  the  said 
office — appointing  all  officers  of  the  land  forces,  in  the 
service  of  the  United  States,  excepting  regimental  offi- 
ers — appointing  all  the  officers  of  the  naval  forces,  and 
commissioning  all  officers  whatever  in  the  service  of  the 
United  States — making  rules  for  the  government  and 
regulation  of  the  said  land  and  naval  forces,  and  direct- 
ing their  operations. 

The  United  States  in  Congress  assembled  shall  have 
authority  to  appoint  a  committee,  to  sit  in  the  recess  of 
Congress,  to  be  denominated  "  A  Comrr.Ittee  of  the 
States,"  and  to  consist  of  one  delegate  from  each  State; 
and  to  appoint  such  other  committees  and  civil  officers 
as  may  be  necessary  for  managing  the  general  affairs 
of  the  United  States  under  their  direction — to  appoint 
one  of  their  number  to  preside,  provided  that  no  person 
be  allowed  to  serve  in  the  office  of  piesident  more  than 
one  year  in  any  term  of  three  years;  to  ascertain  the 
necessary  sums  of  money  to  be  raised  for  the  ser- 
vice of  the  United  States,  and  to  appropriate  and  apply 
the  same  for  defraying  the  public  expenses — to  borrow 
money,  or  emit  bills  on  the  credit  of  the  United  States, 
transmitting  every  half  year  to  the  respective  States  an 
account  of  the  sums  of  money  so  borrowed  or  emitted, 
— to  build  and  equip  a  navy — to  agree  upon  the  num- 
ber of  land  forces,  and  to  make  requisitions  from  each 
State  for  its  quota,  in  proportion  to  the  number  of 
white  inhabitants  in  such  State ;  which  requisition  shall 
be  binding,  and  thereupon  the  Legislature  of  each 
State  shall  appoint  the  regimental  officers,  raise  the 
men  and  cloath,  arm  and  equip  them  in  a  soldier  like 
manner,  at  the  expense  of  the  United  States;   and  the 


And  a  More  Perfect  Society  of  Nations     119 


officers  and  men  so  cloathed,  armed  and  equipped  shall 
march  to  the  place  appointed,  and  within  the  time 
agreed  on  by  the  United  States  in  Congress  assembled : 
but  if  the  United  States  in  Congress  assembled  shall, 
on  consideration  of  circumstances,  judge  proper  that 
any  State  should  not  raise  men,  or  should  raise  a 
smaller  number  than  its  quota,  and  that  any  other 
State  should  raise  a  greater  number  of  men  than  the 
quota  thereof,  such  extra  number  shall  be  raised,  of- 
ficered, cloathed,  armed  and  equipped  in  the  same  man- 
ner as  the  quota  of  such  State,  unless  the  legislature  of 
such  State  shall  judge  that  such  extra  number  cannot 
be  safely  spared  out  of  the  same,  in  which  case  they 
shall  raise,  officer,  cloath,  arm  and  equip  as  many  of 
such  extra  number  as  they  judge  can  be  safely  spared. 
And  the  officers  and  men  so  cloathed,  armed  and 
equipped,  shall  march  to  the  place  appointed,  and 
within  the  time  agreed  on  by  the  United  States  in  Con- 
gress assembled. 

The  United  States  in  Congress  assembled  shall  never 
engage  in  a  war,  nor  grant  letters  of  marque  and  re- 
prisal in  time  of  peace,  nor  enter  into  any  treaties  or 
alliances,  nor  coin  money,  nor  regulate  the  value 
thereof,  nor  ascertain  the  sums  and  expenses  necessary 
for  the  defenc  ind  welfare  of  the  United  States,  or 
any  of  them,  nor  emit  bills,  nor  borrow  money  on  the 
credit  of  the  United  States,  nor  appropriate  money, 
nor  agree  upon  the  number  of  vessels  of  war,  to  be  built 
or  purchased,  or  the  number  of  land  or  sea  forces  to 
be  raised,  nor  appoint  a  commander  in  chief  of  the  army 
or  navy,  unless  nine  States  assent  to  the  same:  nor 
shall  a  question  on  any  other  point,  except  for  adjourn- 
ing from  day  to  day  be  determined,  unless  by  the  votes 


lin-  ■  ■ 


.1 


1 20     Madison's  Debates  in  Federal  Convention 

of  a  majority  of  the  United  States  in  Congress  as- 
sembled. 

The  Congress  of  the  United  States  shall  have  power 
to  adjourn  to  any  time  within  the  year,  and  to  any 
place  within  the  United  States,  so  that  no  period  of  ad- 
journment be  for  a  longer  duration  than  the  space  of 
six  months,  and  shall  publish  the  journal  of  their  pro- 
ceedings monthly  except  such  parts  thereof  relating  to 
treaties,  alliances  or  military  operations,  as  in  their 
judgment  require  secrecy;  and  the  yeas  and  nays  of  the 
delegates  of  each  State  on  any  question  shall  be  en- 
tered on  the  journal,  when  it  is  desired  by  any  dele- 
gate; and  the  delegates  of  a  State,  or  any  of  them,  at 
his  or  their  request  shall  be  furnished  with  a  transcript 
of  the  said  journal,  except  such  parts  as  are  above  ex- 
cepted, to  lay  before  the  Legislatures  of  the  several 
States. 

Article  X.  The  committee  of  the  States,  or  any  nine 
of  them,  shall  be  authorized  to  execute,  in  the  recess  of 
Congress,  such  of  the  powers  of  Congress  as  the 
United  States  in  Congress  assembled,  by  the  consent  of 
nine  States,  shall  from  time  to  time  think  expedient 
to  vest  them  with;  provided  that  no  power  be  dele- 
gated to  the  said  committee,  for  the  exercise  of  which, 
by  the  articles  of  confederation,  the  voice  of  nine  States 
in  the  Congress  of  the  United  States  assembled  is  re- 
quisite. 

Article  XI.  Canada  acceding  to  this  confedera- 
tion, and  joining  in  the  measures  of  the  United  States, 
shall  be  admitted  into,  nd  entitled  to  all  the  advan- 
tages of  this  Union :  but  no  other  colony  shall  be  ad- 
mitted into  the  same,  unless  such  admission  be  agreed 
to  by  nine  States. 

Article  XII.    All  bills  of  credit  emitted,  monies 


And  a  More  Perfect  Society  of  Nations     1 21 

borrowed  and  debts  contracted  by,  or  under  the  author- 
ity of  Congress,  before  the  assembling  of  the  United 
States,  in  pursuance  of  the  present  confederation,  shall 
be  deemed  and  considered  as  a  charge  against  the 
United  States,  for  payment  and  satisfaction  whereof 
the  said  United  States,  and  the  public  faith  are  hereby 
solemnly  pledged. 

Article  XIII.  Every  State  shall  abide  by  the  de- 
terminations of  the  United  States  in  Congress  assem- 
bled, on  all  questions  which  by  this  confederation  are 
submitted  to  them.  And  the  articles  of  this  confed- 
eration shall  be  inviolably  observed  by  every  State, 
and  the  Union  shall  be  perpetual;  nor  shall  any  altera- 
tion at  any  time  hereafter  be  made  in  any  of  them;  un- 
less such  alteration  be  agreed  to  in  a  Congress  of  the 
United  States,  and  be  afterwards  confirmed  by  the 
Legislatures  of  every  State. 

And  whereas  it  hath  pleased  the  Great  Governor  of 
the  world  to  incline  the  hearts  of  the  Legislatures  we 
respectively  represent  in  Congress,  to  approve  of,  and 
to  authorize  us  to  ratify  the  said  articles  of  confeder- 
ation and  perpetual  union.  Know  ye  that  we  the  under- 
signed delegates,  by  virtue  of  the  power  and  authority 
to  us  given  for  that  purpose,  do  by  these  presents,  in 
the  name  and  in  behalf  of  our  respective  constituents, 
fully  and  entirely  ratify  and  confirm  each  and  every 
of  the  said  articles  of  confederation  and  perpetual 
union,  and  all  and  singular  the  matters  and  things 
therein  contained :  And  we  do  further  solemnly  plight 
and  engage  the  faith  of  our  respective  constituents,  that 
they  shall  abide  by  the  determinations  of  the  United 
States  in  Congress  assembled,  on  all  questions,  which 
by  the  said  confederation  are  submitted  to  them.  And 
that  the  articles  thereof  shall  be  inviolably  observed  by 


*l 


122     Madison's  Debates  in  Federal  Convention 


1'  i 


.1 


the  States  we  re[s]pectively  represent,  and  that  the 
Union  shall  be  perpetual. 

In  witness  whereof  we  have  hereunto  set  our  hands 
in  Congress.  Done  at  Philadelphia  in  the  State  of 
Pennsylvania  the  ninth  day  of  July  in  the  year  of  our 
Lord  one  thousand  seven  hundred  and  seventy-eight, 
and  in  the  third  year  of  the  independence  of  America. 

On  the  part  &  behalf  of  the  State  of  New  Hampshire. 
JosiAH  Bartlett,  John   Wentvvorth, 

Junr., 

August  8th,  1778. 

On  the  part  and  behalf  of  the  State  of  Massachusetts 

Bay. 

John  Hancock,  Francis  Dana, 

Samuel  Adams,  James  Lovell, 

Elbridge  Gerry  Samuel  Holten. 

On  the  part  and  behalf  of  the  State  of  Rhode  Island 

and  Providence  Plantations. 
William  Ellery,  John  Collins. 

Henry  March  ant, 

On  the  part  and  behalf  of  the  State  of  Connecticut. 
Roger  Sherman,  Titus  Hosmer, 

Samuel  Huntington,      Andrew  Adams. 
Oliver  Wolcott, 

On  the  part  and  behalf  of  the  State  of  New  York. 
Jas.  Duane,  Wm.  Duer, 

Fra.  Lewis,  Gouv.  Morris. 

On  the  part  and  in  behalf  of  the  State  of  New  Jersey, 

Novr.  26,  1778. 
Jno.  Witherspoon,  Nathl.  Sc udder. 


And  a  More  Perfect  Society  of  Nations     123 

On  the  part  and  behalf  of  the  State  of  Pennsylvania. 

RoBT.  Morris,  '  William  Clingan, 

Daniel  Roberdeau,        Joseph  Reed,  22d  July, 
JoNA.  Bayard  Smith,  1778. 

On  the  part  &  behalf  of  the  State  of  Delaware. 
Tho.  M'Kean,  Feby.  12,  Nicholas  Van  Dyke. 

1779. 
John    Dickinson,    May 

Sth,  1779. 

On  the  part  and  behalf  of  the  State  of  Maryland. 
John  Hanson,  March  i,  Daniel  Carroll,  Mar. 
1781.  I,  1781. 

On  the  part  and  behalf  of  the  State  of  Virginia. 

Richard  Henry  Lee,       Jno.  Harvie, 

John  Banister,  Francis  Lightfoot  Lee. 

Thomas  Adams, 

On  the  part  and  behalf  of  the  State  of  No.  Carolina. 

John   Penn,  July  21st,  Corns.  Harnett, 
1778.  Jno.  Williams. 

On  the  part  and  behalf  of  the  State  of  South  Carolina. 

Henry  Laurens,  Jno.  Matthews, 

William  Henry  Dray-  Richd.  Hutson, 
TON,  Thos.  Heyward,  Junr. 

On  the  part  &  behalf  of  the  State  of  Georgii. 

Jno.  Walton,  24th  July,  Edwd.  Telfaif, 
1778.  Edwd.  Langworthy. 


f  i 


THE    CONSTITUTION    OF    THE    UNITED 
STATES— 1787  ' 

We  the  People  of  the  United  States,  in  Order  to 
form  a  more  perfect  Union,  establish  Justice,  insure 
domestic  Tranquility,  provide  for  the  common  defence, 
promote  the  general  Welfare,  and  secure  the  Blessings 
of  Liberty  to  ourselves  and  our  Posterity,  do  ordain 
and  establish  this  Constitution  for  the  United  States 
of  America. 


Article  I. 

Section  i.  All  legislative  Powers  herein  granted 
shall  be  vested  in  a  Congress  of  the  United  States, 
which  shall  consist  of  a  Senate  and  House  of  Represen- 
tatives. 

Section  2.  '"  The  House  of  Representatives  shall 
be  composed  of  Members  chosen  every  second  Year 
by  the  People  of  the  several  States,  and  the  Electors  in 
each  State  shall  have  the  Qualifications  requisite  for 
Electors  of  the  most  numerous  Branch  of  the  State 
Legislature. 

"'  No  Person  shall  be  a  Representative  who  shall 
not  have  attained  the  Age  of  twenty-five  Years,  and 
been  seven  Years  a  Citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  Inhabitant  of  that 
State  in  which  he  shall  be  chosen. 

*  The  text  of  the  Constitution,  and  the  amendments  thereto,  are 
taken  from  the  Revised  Statutes  of  the  United  States,  1878,  and 
Senate  Document  No.  12,  63d  Congress,  1st  Session. 

The  numbers  prefixed  to  the  clauses  of  the  Constitution,  and  here 
placed  in  parentheses,  do  not  appear  in  the  original  text. 


Madison's  Debates  in  Federal  Convention     125 


t 


J 

I 


'"* [Representatives  and  direct  Taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  Num- 
bers, which  shall  be  determined  by  adding  to  the  whole 
Number  of  free  Persons,  including  those  bound  to 
Service  for  a  Term  of  Years,  and  excluding  Indians 
not  taxed,  three  fifths  of  all  other  Persons.]  The 
actual  Enumeration  shall  be  made  within  three  Years 
after  the  first  Meeting  of  the  Congress  of  the  United 
States,  and  within  every  subsequent  Term  of  ten  Years, 
in  such  Manner  as  they  shall  by  Law  direct.  The  Num- 
ber of  Representatives  shall  not  exceed  one  for  every 
thirty  Thousand,  but  each  State  shall  have  at  Least 
one  Representative;  and  until  such  enumeration  shall 
be  made,  the  State  of  New  Hampshire  shall  be  entitled 
to  chuse  three,  Massachusetts  eight,  Rhode-Island  and 
Providence  Plantations  one,  Connecticut  five,  New- 
York  six.  New  Jersey  four,  Pennsylvania  eight,  Del- 
aware one,  Maryland  six,  Virginia  ten.  North  Carolina 
five.  South  Carolina  five,  and  Georgia  three. 

(«)  When  vacancies  happen  in  the  Representation 
from  any  State,  the  Executive  Authority  thereof  shall 
issue  Writs  of  Election  to  fill  such  Vacancies. 

""  The  House  of  Representatives  shall  chuse  their 
Speaker  and  other  Officers;  and  shall  have  the  sole 
Power  of  Impeachment. 

Section  3.  ['■*  The  Senate  of  the  United  States 
shall  be  composed  of  two  Senators  from  each  State, 
chosen  by  the  Legislature  thereof,  for  six  Years;  and 
each  Senator  shall  have  one  Vote.]t 

•The  clause  included  in  brackets  is  amended  by  the  fourteenth 
amendment,  2d  Session. 

t  The  first  paragraph  of  section  three  of  Article  i,  of  the  Con- 
stitution of  the  United  States,  and  so  much  of  paragraph  two  of  the 
same  section  as  relates  to  filling  vacancies  are  amended  by  the 
seventeenth  amendment  to  the  Constitution. 


126     Madison's  Debates  in  Federal  Convention 


I'  i 


'"  Immediately  after  they  shall  be  assembled  in  Con- 
sequence of  the  tirst  Election,  they  shall  be  divided  as 
equally  as  may  be  into  three  Classes.  The  Seats  of  the 
Senators  of  the  first  Class  shall  be  vacated  at  the 
Expiration  of  the  second  Year,  of  the  second  Class  at 
the  Expiration  of  the  fourth  Year,  and  of  the  third 
Class  at  the  Expiration  of  the  sixth  Year,  so  that  one- 
third  may  be  chosen  every  second  Year;  and  if  Vacan- 
cies happen  by  Resignation,  or  otherwise,  during  the 
Recess  of  the  Legislature  of  any  State,  the  Executive 
thereof  may  make  temporary  Appointments  [until  the 
next  Meeting  of  the  Legislature,  which  shall  then  fill 
such  Vacancies]. 

'"  No  Person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  Age  of  thirty  Years,  and  been  nine  Years 
a  Citizen  o:'  the  United  States,  and  who  shall  not, 
when  elected,  be  an  Inhabitant  of  that  State  for  which 
he  shall  be  chosen. 

'*'  The  Vice  President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  Vote,  unless 
they  be  equally  divided. 

''-'  The  Senate  shall  chuse  their  other  Officers,  and 
also  a  President  pro  tempore,  in  the  Absence  of  the 
Vice  President,  or  when  he  shall  exercise  the  Office  of 
President  of  the  United  States. 

""  The  Senate  shall  have  the  sole  Power  to  try  all 
Impeachments.  When  sitting  for  that  Purpose,  they 
shall  be  on  Oath  or  Affirmation.  When  the  President 
of  the  United  States  is  tried,  the  Chief  Justice  shall 
preside :  And  no  Person  shall  be  convicted  without 
the  Concurrence  of  two  thirds  of  the  Members  present. 

"'  Judgment  in  Cases  of  Impeachment  shall  no*- 
extend  further  than  to  removal  from  Office,  and  dis- 
qualification to  hold  and  enjoy  any  Office  of  honor, 


And  a  More  Perfect  Society  of  Nations     127 

Trust  or  Profit  under  '  United  States:  but  the  Party 
convicted  shall  neve.  <  be  liable  and  subject  to 

Indictment,  Trial,  Judjfment  and  Punishment,  accord- 
ing to  Law. 

Section  4.  '"  The  Times,  Places  and  Manner  of 
holding  Elections  for  Senators  and  Representatives, 
shall  be  prescribed  in  each  State  by  the  Legislature 
thereof;  but  the  Congress  may  at  any  time  bv  Law 
make  or  alter  such  Regulations,  except  as  to  the  Places 
of  chusing  Senators. 

'"'  The  Congress  shall  assemble  at  least  once  in  every 
Year,  and  such  Meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  Law  appoint  a  different 
Day. 

Section  5.  '"  Each  House  shall  be  the  Judge  of  the 
Elections,  Returns  and  Qualifications  of  its  own  Mem- 
bers, and  a  Majority  of  each  shall  constitute  a  Quorum 
to  do  Business;  but  a  smaller  Number  may  adjourn 
from  day  to  day,  and  may  be  authorized  to  compel 
the  Attendance  of  absent  Members,  in  such  Manner, 
and  under  such  Penalties  as  each  House  may 
provide. 

'■'  Each  House  may  determine  the  Rules  of  its  Pro- 
ceedings, punish  its  Members  for  disorderly  Behaviour, 
and,  with  the  Concurrence  of  two  thirds,  expel  a  Mem- 
ber. 

'"  Each  House  shall  keep  a  Journal  of  its  Proceed- 
ings, and  from  time  to  time  publish  the  same,  excepting 
such  Parts  as  may  in  their  Judgment  require  Secrecy; 
and  the  Yeas  and  Nays  of  the  Members  of  either 
House  on  any  question  shall,  at  the  Desire  of  one  fifth 
of  those  Present,  be  entered  on  the  Journal. 

'*'  Neither  House,  during  the  Session  of  Congress, 
shall,  without  the  consent  of  the  other,  adjourn  for 


! 


128     Madison's  Debates  in  Federal  Convention 


'I 


more  than  three  days,  nor  to  any  other  Place  than  that 
in  which  the  two  Houses  shall  be  sitting. 

Section  6.  '"  The  Senators  and  Representatives 
shall  receive  a  Compensation  for  their  Services,  to  be 
ascertained  by  Law,  and  paid  out  of  the  Treasury  of 
the  United  States.  They  shall  in  all  Cases,  except 
Treason,  F'elony  and  Breach  of  the  Peace,  be  privi- 
leged from  Arrest  during  their  Attendance  at  the  Ses- 
sion of  their  respective  Houses,  and  in  going  to  and 
returning  from  the  same;  and  for  any  Speech  or 
Debate  in  either  House,  they  shall  not  be  questioned  in 
any  other  Place. 

'-■'  No  Senator  or  Representative  shall,  during  the 
Time  for  which  he  was  elected,  be  appointed  to  any 
civil  Office  under  the  Authority  of  the  United  States, 
which  shall  have  been  created,  or  the  Emoluments 
whereof  shall  have  been  encreased  during  such  ti  .'; 
and  no  Person  holding  any  Office  under  the  United 
States,  shall  be  a  Member  of  either  House  during  his 
Continuance  in  Office. 

Section  7.  '"All  Bills  for  raising  Revenue  shall 
originate  in  the  House  of  Representatives;  but  the 
Senate  may  propose  or  concur  with  Amendments  as 
on  other  Biils. 

*''  Every  Bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become 
a  Law,  be  presented  to  the  President  of  the  United 
States;  If  he  approve  he  shall  sign  it,  but  if  not  he  shall 
return  it,  with  his  Objections  to  that  House  in  which  it 
shall  have  originated,  who  shall  enter  the  Objections 
at  large  on  their  Journal,  and  proceed  to  reconsider  it. 
If  after  such  Reconsideration  two  thirds  of  that  House 
shall  agree  to  pass  the  Bill,  it  shall  be  sent,  together 
with  the  Objections,  to  the  other  House,  by  which  it 


And  a  More  Perfect  Society  of  Nations     129 

shall  likewise  be  reconsidered,  and  if  approved  by  two 
thirds  of  that  House,  it  shall  become  a  Law.  But  in 
all  such  Cases  t-he  Votes  of  both  Houses  shall  be  deter- 
mined by  Yeas  and  Nays,  and  the  Names  of  the  Per- 
sons voting  for  and  against  the  Bill  shall  be  entered  on 
the  Journal  of  each  House  respectively.  If  any  Bill 
shall  not  be  returned  by  the  President  witiiin  ten  Days 
(Sundays  excepted)  after  it  shall  have  been  presented 
to  him,  the  Same  shall  be  a  Law,  in  like  Manner  as  if 
he  had  signed  it,  unless  the  Congress  by  their  Adjourn- 
ment prevent  its  Return,  in  which  Case  it  shall  not  be 
a  Law. 

'"  Every  Order,  Resolution,  or  Vote  to  which  the 
Concurrence  of  the  Senate  and  House  of  Representa- 
tives may  be  necessary  (except  on  a  question  of 
Adjournment)  shall  be  presented  to  the  President  of 
the  United  States;  and  before  the  Same  shall  take 
Effect,  shall  be  approved  by  him,  or  being  disapproved 
by  him,  shall  be  repassed  by  two  thirds  of  the  Senate 
and  House  of  Representatives,  according  to  the  Rules 
and  Limitations  prescribed  in  the  Case  of  a  Bill. 

Section  8.  The  Congress  shall  have  Power  '"  To 
lay  and  collect  Taxes,  Duties,  Imposts  and  Excises,  to 
pay  the  Debts  and  provide  for  the  common  Defence 
and  general  Welfare  of  the  United  States;  but  all 
Duties,  Imposts  and  Excises  shall  be  uniform  through- 
out the  United  States; 

'-'  To  borrow  money  on  the  credit  of  the  United 
States ; 

'"  To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  Tribes; 

'*'  To  establish  an  uniform  Rule  of  Naturalization, 
and  uniform  Laws  on  the  subject  of  Bankruptcies 
throughout  the  United  States; 


I 


n  i 
4! 


I' I 


•'^• 


130     Madison's  Debates  in  Federal  Convention 

<"  To  coin  Money,  regulate  the  Value  thereof,  and 
of  foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures; 

'•"  To  provide  for  the  Punishment  of  counterfeiting 
the  Securities  and  current  Coin  of  the  United  States; 

'"  To  establish  Post  Offices  and  post  Roads; 

'*•  To  promote  the  Progress  of  Science  and  useful 
Arts,  by  securing  for  limited  Times  to  Authors  and 
Inventors  the  exclusive  Right  to  their  respective  Writ- 
ings and  Discoveries; 

**'  To  constitute  Tribunals  inferior  to  the  supreme 
Court; 

''"'  To  define  and  punish  Piracies  and  Felonies  com- 
mitted on  the  high  Seas,  and  Offenses  against  the  Law 
of  Nations; 

'"'  To  declare  War,  grant  Letters  of  Marque  and 
Reprisal,  and  make  Rules  concerning  Captures  on  Land 
and  Water; 

<"'  To  raise  and  support  Armies,  but  no  Appropri- 
ation of  Money  to  that  Use  shall  be  f  ^r  a  longer  Term 
than  two  Years; 

'"'  To  provide  and  maintain  a  Navy; 

'"'  To  make  Rules  for  the  Government  and  Regula- 
tion of  the  land  and  naval  Forces; 

"'"  To  provide  for  calling  forth  the  Militia  to  exe- 
cute the  Laws  of  the  Union,  suppress  Insurrections  and 
repel  Invasions; 

*"*  To  provide  for  organizing,  arming,  and  disciplin- 
ing the  Militia,  and  for  governing  such  Part  of  them  as 
may  be  employed  in  the  Service  of  the  United  States, 
reserving  to  the  States  respectively,  the  Appointment 
of  the  Officers,  and  the  Authority  of  training  the 
Militia  according  to  the  discipline  prescribed  by  Con- 
gress ; 


And  a  More  Perfect  Society  of  Nations     131 

'"'  To  exercise  exclusive  Legislation  in  all  Cases 
whatsoever,  over  such  District  (not  exceeding  ten 
Miles  square)  as  may,  by  Cession  of  particular  States, 
and  the  Acceptance  of  Congress,  become  the  seat  of 
the  Government  of  the  United  States,  and  to  exercise 
like  Authority  over  all  Places  purchased  by  the  Consent 
of  the  Legislature  of  the  State  in  which  the  Same  shall 
be,  for  the  Erection  of  Forts,  Magazines,  Arsenals, 
dock-Yards,  and  other  needful  Buildings; — And 

'"*'  To  make  all  Laws  which  shall  be  necessary  and 
proper  for  carrying  into  Execution  the  foregoing 
Powers,  and  all  other  Powers  vested  by  this  Constitu- 
tion in  the  Government  of  the  United  States,  or  in  any 
Department  or  Officer  thereof. 

Section  9.  '"  The  Migration  or  Importation  of  such 
Persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Con- 
gress prior  to  the  Year  one  thousand  eight  hundred 
and  eight,  but  a  tax  or  duty  may  be  imposed  on  such 
Importation,  not  exceeding  ten  dollars  for  each  Person. 

'^'  The  Privilege  of  the  Writ  of  Habeas  Corpus 
shall  not  be  suspended,  unless  when  in  Cases  of  Rebel- 
lion or  Invasion  the  public  Safety  may  require  it. 

'^'  No  Bill  of  Attainder  or  ex  post  facto  Law  shall 
be  passed. 

*'*'  No  Capitation,  or  other  direct,  Tax  shall  be  laid, 
unless  in  Proportion  to  the  Census  or  ^'numeration 
herein  before  directed  to  be  taken. 

""  No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State. 

'"  No  Preference  shall  be  given  by  any  Regulation 
of  Commerce  or  Revenue  to  the  Ports  of  one  State 
over  those  of  another:  nor  shall  Vessels  bound  to,  or 

•  See  XVI  Amendment. 


132     Madison's  Debates  in  Federal  Convention 


I': 


from,  one  State,  be  obliged  to  enter,  dear,  or  pay 
Duties  in  another. 

'^'  No  Money  shall  be  drawn  from  the  Treasury,  but 
in  Consequence  of  Appropriations  made  by  Law;  and 
a  regular  Statement  and  Account  of  the  Receipts  and 
Expenditures  of  all  public  Money  shall  be  published 
from  time  to  time. 

""  No  Title  of  Nobility  shall  be  granted  by  the 
United  States;  and  no  Person  holding  any  Office  of 
Profit  or  Trust  under  them,  shall,  without  the  Consent 
of  the  Congress,  accept  of  any  present.  Emolument, 
Office,  or  Title,  of  any  kind  whatever,  from  any  King, 
Prince,  or  foreign  State. 

Section  10.  "*  No  State  shall  enter  into  any  Treaty, 
Alliance,  or  Confederation;  grant  Letters  of  Marque 
and  Reprisal;  coin  Money;  emit  Bills  of  Credit;  make 
any  Thing  but  gold  and  silver  Coin  a  Tender  in  Pay- 
ment of  Debts;  pass  any  Bill  of  Attainder,  ex  post 
facto  Law,  or  Law  impairing  the  Obligation  of  Con- 
tracts, or  grant  any  Title  of  Nobility. 

<='  No  State  shall,  without  the  Consent  of  the  Con- 
gress, lay  any  Imposts  or  Duties  on  Imports  or 
Exports,  except  what  may  be  absolutely  necessary  for 
executing  its  inspection  Laws :  and  the  net  Produce  of 
all  Duties  and  Imposts,  laid  by  any  State  on  Imports 
or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the 
United  States;  and  all  such  Laws  shall  be  subject  to  the 
Revision  and  Control  of  the  Congress. 

*^'  No  State  shall,  without  the  Consent  of  Congress, 
lay  any  duty  of  Tonnage,  keep  Troops,  or  Ships  of  War 
in  time  of  Peace,  enter  into  any  Agreement  or  Compact 
with  another  State,  or  with  a  foreign  Power,  or  engage 
in  War,  unless  actually  invaded,  or  in  such  imminent 
Danger  as  will  not  admit  of  delay. 


And  a  More  Perfect  Society  of  Nations     133 

Article  II. 

Section  I.  '"  The  executive  Power  shall  be  vested 
in  a  President  of  the  United  States  of  America.  He 
shall  hold  his  Office  during  the  Term  of  four  Years, 
and,  together  with  the  Vice  President,  chosen  for  the 
same  Term,  be  elected,  as  follows: 

""  Each  State  shall  appoint,  in  such  Manner  as  the 
Legislature  thereof  may  direct,  a  Number  of  Electors, 
equal  to  the  whole  Number  of  Senators  and  Represen- 
tatives to  which  the  State  may  be  entitled  in  the  Con- 
gress: but  no  Senator  or  Representative,  or  Person 
holding  an  Office  of  Trust  or  Profit  under  the  United 
States,  shall  be  appointed  an  Elector. 

*[The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  Ballot  for  two  persons,  of  whom  one  at 
least  shall  not  be  an  Inhabitant  of  the  same  State  with 
themselves.  And  they  shall  make  a  List  of  all  the  Per- 
sons voted  for,  and  of  the  Number  of  Votes  for  each ; 
which  List  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  Seat  of  the  Government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The 
President  of  the  Senate  shall,  in  the  Presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  Cer- 
tificates, and  the  Votes  shall  then  be  counted.  The  Per- 
son having  the  greatest  Number  of  Votes  shall  be  the 
President,  if  such  Number  be  a  Majority  of  the  v.  hole 
Number  of  Electors  appointed;  and  if  there  be  more 
than  one  who  have  such  Majority,  and  have  an  equal 
Number  of  Votes,  then  the  House  of  Representatives 
shall  immediately  chuse  by  Ballot  one  of  them  for  Presi- 
dent; and  if  no  Person  have  a  Majority,  then  from  the 
five  highest  on  the  List  the  said  House  shall  in  like 

•This  clause  has  been  superseded  by  the  twelfth  amendment. 


H 


8 
I 
■i" 


1 


134     Madison's  Debates  in  Federal  Convention 


.1 


■>■.» 


Manner  chuse  the  President.  But  in  chusing  the  Presi- 
dent, the  Votes  shall  be  taken  by  States,  the  Represen- 
tation from  each  State  having  one  Vote ;  A  quorum  for 
this  Purpose  shall  consist  of  a  Member  or  Members 
from  two  thirds  of  the  States,  and  a  Majority  of  all  the 
States  shall  be  necessary  to  a  Choice.  In  every  Case, 
after  the  Choice  of  the  President,  the  Person  having  the 
greatest  Number  of  Votes  of  the  Electors  shall  be  the 
Vice  President.  But  if  there  should  remain  two  or 
more  who  have  equal  Votes,  the  Senate  shall  chuse 
from  them  by  Ballot  the  Vice  President] 

"'  The  Congress  may  determine  the  Time  of  chusing 
the  Electors,  and  the  Day  on  which  they  shall  give 
their  Votes;  which  Day  shall  be  the  same  throughout 
the  United  States. 

'*'  No  Person  except  a  natural  born  Citizen,  or  a 
Citizen  of  the  United  States,  at  the  time  of  the  Adop- 
tion of  this  Constitution,  shall  be  eligible  to  the  Office 
of  President;  neither  shall  any  Person  be  eligible  to 
that  Office  who  shall  not  have  attained  to  the  Age  of 
thirty  five  Years,  and  been  fourteen  Years  a  Resident 
within  the  United,  States. 

•°'  In  Case  of  the  Removal  of  the  President  from 
Office,  or  of  his  Death,  Resignation,  or  Inability  to  dis- 
charge the  Powers  and  Duties  of  the  said  Office,  the 
Same  shall  devolve  on  the  Vice  President,  and  the 
Congress  may  by  Law  provide  for  the  Case  of  Re- 
moval, Death,  Resignation  or  Inability,  both  of  the 
President  and  Vice  President,  declaring  what  Officer 
shall  then  act  as  President,  and  such  Officer  shall  act 
accordingly,  until  the  Disability  be  removed,  or  a  Pres- 
ident shall  be  elected. 

'*'  The  President  shall,  at  stated  Times,  receive  for 
his  Services,  a  Compensation,  which  shall  neither  be 


And  a  More  Perfect  Society  of  Nations     135 

encreased  nor  diminished  during  the  Period  for  which 
he  shall  have  been  elected,  and  he  shall  not  receive 
within  that  Period  any  other  Emolument  from  the 
United  States,  or  any  of  them. 

'"  Before  he  enter  on  the  Execution  of  his  Office,  he 
shall  take  the  following  Oath  or  Affirmation : — "  I  do 
solemly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  Office  of  President  of  the  United  States,  and  will 
to  the  best  of  my  Ability,  preserve,  protect  and  defend 
the  Constitution  of  the  United  States." 

Section  2.  *•'  The  President  shall  be  Commander  in 
Chief  of  the  Army  and  Navy  of  the  United  States,  and 
of  the  Militia  of  the  several  States,  when  called  into 
the  actual  Service  of  the  United  States;  he  may  require 
the  Opinion,  in  writing,  of  the  principal  Officer  in  each 
of  the  executive  Departments,  upon  any  Subject  relat- 
ing to  the  Duties  of  their  respective  Offices,  and  he 
shall  have  Power  to  grant  Reprieves  and  Pardons  for 
Offences  against  the  United  States,  except  in  Cases  of 
Impeachment. 

^■^  He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided  two 
thirds  of  the  Senators  present  concur;  and  he  shall  nom- 
inate, and  by  and  with  the  Advice  and  Consent  of  the 
Senate,  shall  appoint  Ambassadors,  other  public  Min- 
isters and  Consuls,  Judges  of  the  supreme  Court,  and 
all  other  Officers  of  the  United  States,  whose  Appoint- 
ments are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  Law :  but  the  Congress  may  by 
Law  vest  the  Appointment  of  such  inferior  Officers, 
as  they  think  proper,  in  the  President  alone,  in  the 
Courts  of  Law,  or  in  the  Heads  of  Departments. 

•''  The  President  shall  have  Power  to  fill  up  all 
Vacancies  that  may  happen  during  the  Recess  of  the 


136     Madison's  Debates  in  Federal  Convention 


». 


Senate,  by  granting  Commissions  which  shall  expire  at 
the  End  of  their  next  session. 

Section  3.  He  shall  from  time  to  time  give  to  the 
Congress  Information  of  the  State  of  the  Union,  and 
recommend  to  their  Consideration  such  Measures  as  he 
shall  judge  necessary  and  expedient;  he  may,  on  extra- 
ordinary Occasions,  convene  both  Houses,  or  either  of 
them,  and  in  Case  of  Disagreement  between  them,  with 
Respect  to  the  Time  of  Adjournment,  he  may  adjourn 
them  to  such  Time  as  he  shall  think  proper;  he  shall 
receive  Ambassadors  and  other  public  Ministers;  he 
shall  take  Care  that  the  Laws  be  faithfully  executed, 
and  shall  Commission  all  the  Officers  of  the  United 
States. 

Sfxtion  4.  The  President,  Vice  President  and  all 
civil  Officers  of  the  United  States,  shall  be  removed 
from  Office  on  Impeachment  for,  and  Conviction  of. 
Treason,  Bribery,  or  other  high  Crimes  and  Misde- 
meanors. 


Article  III. 

Section  i.  The  judicial  Power  of  the  United  States, 
shall  be  vested  in  one  supreme  Court,  .-.nd  in  such  infer- 
ior Courts  IS  the  Congress  may  from  time  to  time 
ordain  and  establish.  The  Judges,  both  of  the  supreme 
and  inferior  Courts,  shall  hold  their  Offices  during 
good  Behaviour,  and  shall,  at  Stated  Times,  receive  for 
their  Services,  a  Compensation,  which  shall  not  be 
diminished  during  their  Continuance  in  Office. 

Section  2.  '"  The  judicial  Power  shall  extend  to  all 
Cases,  in  Law  and  Equity,  arising  under  this  Constitu- 
tion, the  Laws  of  the  United  States,  and  Treaties  made, 
or  which  shall  be  made,  under  their  Authority; — to  all 


f« 


And  a  More  Perfect  Society  of  Nations     137 


Cases  affecting  Ambassadors,  or  other  public  Ministers 
and  Consuls; — to  all  CaSes  of  admiralty  and  mari- 
time Jurisdiction; — to  Controversies  to  which  the 
United  States  shall  be  a  Party; — to  Controversies 
between  two  or  more  States; — between  a  State  and 
Citizens  of  another  State; — between  Citizens  of  differ- 
ent States; — between  Citizens  of  the  same  State  claim- 
ing Lands  under  Grants  of  different  States,  and  between 
a  State,  or  the  Citizens  thereof,  and  foreign  States, 
Citizens  or  Subjects. 

""  In  all  Cases  affecting  Ambassadors,  other  public 
Ministers  and  Consuls,  and  those  in  which  a  State  shall 
be  Party,  the  supreme  Court  shall  have  original  Juris- 
diction. In  all  the  other  Cases  before  mentioned,  the 
supreme  Court  shall  have  appellate  Jurisdiction,  both 
as  to  Law  and  Fact,  with  such  Exceptions,  and  under 
such  Regulations  as  the  Congress  shall  make. 

">  The  Trial  of  all  Crimes,  except  in  Cases  of 
Impeachment,  shall  be  by  Jury;  and  such  Trial  shall  be 
held  in  the  State  where  the  said  Crimes  shall  have  been 
committed;  but  when  not  committed  within  any  State, 
the  Trial  shall  be  at  such  Place  or  Places  as  the  Con- 
gress may  by  Law  have  directed. 

Section  3.  '"  Treason  against  the  United  States, 
shall  consist  only  in  levying  War  against  them,  or  in 
adhering  to  their  Enemies,  giving  them  Aid  and  Com- 
fort. No  Person  shall  be  convicted  of  Treason  unless 
on  the  Testimony  of  two  Witnesses  to  the  same  overt 
Act,  or  on  Confession  In  open  Court. 

'^'  The  Congress  shall  have  Power  to  declare  the 
Punishment  of  Treason,  but  no  Attainder  of  Treason 
shall  work  Corruption  of  Blood,  or  Forfeiture  except 
during  the  Life  of  the  Person  attainted. 


I  I 


138    Madison's  Debates  in  Federal  Convention 


I.  ' 


■».,•  I 


Article  IV. 

Section  1.  Full  Faith  and  Credit  shall  be  given  in 
each  State  to  the  public  Acts,  Records,  and  judicial 
Proceedings  of  every  other  State.  And  the  Congress 
may  by  general  Laws  prescribe  the  Manner  in  which 
such  Acts,  Records  an  1  Proceedings  shall  be  proved, 
and  the  Effect  thereof. 

Sectio.n  2.  '"  The  Citizens  of  each  State  shall  be 
entitled  to  all  Privileges  and  Immunities  of  Citizens  in 
the  several  States. 

'-'  A  Person  charged  in  any  State  with  Treason, 
Felony,  or  other  Crime,  who  shall  flee  from  Justice, 
and  be  found  in  another  State,  shall  on  Demand  of  the 
executive  Authority  of  the  State  from  which  he  fled,  be 
delivered  up,  to  be  removed  to  the  State  having  juris- 
diction of  the  Crime. 

*"  No  Person  held  to  Service  or  Labour  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall, 
in  Consequence  of  any  Law  or  Regulation  therein,  be 
discharged  from  such  Service  or  Labour,  but  shall  be 
delivered  up  on  Claim  of  the  Party  to  whom  such  Ser- 
vice or  Labour  may  be  due. 

Section  3.  '"  New  States  may  be  admitted  by  the 
Congress  into  this  Union;  but  no  new  State  shall  be 
formed  or  erected  within  the  Jurisdiction  of  any  other 
State;  nor  any  State  be  formed  by  the  Junction  of 
two  or  more  States,  or  Parts  of  States,  without  the 
Consent  of  the  Legislatures  of  the  States  concerned 
as  well  as  of  the  Congress. 

'^'  The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respecting 
the  Territory  or  other  Property  belonging  to  the  United 
States ;  and  nothing  in  this  Constitution  shall  be  so  con- 


And  a  More  Perfect  Society  of  Nations     139 

strued  as  to  Prejudice  any  Claims  of  the  United  States, 
or  of  any  particular  State. ' 

Section  4.  The  United  States  shall  guarantee  to 
every  State  in  this  Union  a  Republican  Form  of  Gov- 
ernment, and  shall  protect  each  of  them  against 
Invasion;  and  on  Application  of  the  Legislature,  or  of 
the  Executive  (when  the  Legislature  cannot  be  con- 
vened) against  domestic  Violence. 

Article  V^ 

The  Congress,  whenever  two-thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  Amendments  to 
this  Constitution,  or,  on  the  Application  of  the  Legis- 
latures of  two  thirds  of  the  several  States,  shall  call 
a  Convention  for  proposing  Amendments,  which,  in 
either  Case,  shall  be  valid  to  all  Intents  and  Purposes, 
as  Part  of  this  Constitution,  when  ratified  by  the  Legis- 
latures of  three  fourths  of  the  several  States,  or  by 
Conventions  in  three  fourths  thereof,  as  the  one  or  the 
other  Mode  of  Ratification  may  be  proposed  by  the 
Congress;  Provided  that  no  Amendment  which  may 
be  made  prior  to  the  Year  One  thousand  eight  hundred 
and  ei^ht  shall  in  any  Manner  affect  the  first  and  fourth 
Clauses  in  the  Ninth  Section  of  the  first  Article;  and 
that  no  State,  without  its  Consent,  shall  be  deprived 
of  it's  equal  Suffrage  in  the  Senate. 


Article  VI. 

'*'  All  Debts  contracted  an  J  Engagements  entered 
into,  before  the  Adoption  o  this  Constitution,  shall 
be  as  valid  against  the  L'nitcd  States  under  this  Con- 
stitution, as  under  the  Cimfederation. 

"'  This  Constitution,  and  the  Laws  of  the  United 


140     Madison's  Debates  in  Federal  Convention 


I,  * 

V; 


St..  I 


States  which  shall  be  made  in  Pursuance  thereof;  and 
all  Treaties  made,  or  which  shall  be  made,  under  the 
Authority  of  the  United  States,  shall  be  the  supreme 
Law  of  the  Land;  and  the  Judges  in  every  State  shall 
be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

'"  The  Senators  and  Representatives  before  men- 
tioned, and  the  Members  of  the  several  State  Legisla- 
tures, and  all  executive  and  judicial  Officers,  both  of  the 
United  States  and  of  the  several  States,  shall  be  bound 
by  Oath  or  Affirmation,  to  support  this  Constitution; 
but  no  religious  Test  shall  ever  be  required  as  a  Quali- 
fication to  any  Office  or  public  Trust  under  the  United 
States. 

Article  VH. 

The  Ratification  of  the  Conventions  of  nine  States, 
shall  be  sufficient  for  the  Establishment  of  this  Con- 
stitution between  the  States  so  ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of 
the  States  present  the  Seventeenth  Day  of  September 
in  the  Year  of  our  Lord  one  thousand  seven  hundred 
i»nd  Eighty  seven,  and  of  the  Independence  of  the 
United  States  of  America  the  Twelfth.  In  Witness 
whereof  We  have  hereunto  subscribed  our  Names. 

Gl:  WASHINGTON 
Presidt  and  deputy  from  Virginia 


New  Hampshire. 
John  Langdon  Nicholas  Gilman 

MassachuH'tts. 
Natiiaxif.l  Gorham        RiFus  King 

Connecticut. 
Wm.  Saml.  Johnson        Roger  Sherman 


And  a  More  Perfect  Society  of  Nations     141 

New  York. 
Alexander  Hamilton     • 

New  Jersey. 
Wil:  Livingston  VVm.  Patierson 

David  Brearley  Jona  :  Dayton 

Pennsylvania. 
B,  Fpa    I  mn  Thomas  Mifflin 

ROB'^     M    KRIS  CJKO.  ClVMER 

Tur.     r  ii/.'iM'j.N:  Jared  Ixgersoll 

Ja.ii     'kv'iiso.v  Gouv  Morris 


C:.o:  K  a;> 

]r{'i'<   '^i":    NSC' 


•)     .  care. 

Gunning    Bedford   Jun 
Richard  Bassett 


.\  I  aryland. 
James  Ai^.iiA'Ri  Dan  of  St   Thos  Jeni- 

Danl.  Carroll  fer 


John  Blair- 


Virginia. 

James  Madison  Jr. 


North  Carolina. 
Wm.  Blount  Riciid  Dobbs  Spaight, 

Hu  Williamson 


South  Carolina. 

J.  Rutledge 

Charles  Cotesworth 

Charles 

PiNCKNEY                                               PiNCKNEY 

P    '<CE  Butler 

Georgia. 

William 

Few 

Abr  Baldwin 

Attest 

WILLIAM  JACKSON  Secretary 

* 

I'l 


I 


Articles  ix  Addition  To,  and  Amendment  Of, 
THE  Constitution  of  the  United  States  of 
America,  Proposed  by  Congress,  and  Ratified 
BY  THE  Legislatures  of  the  Several  States, 
Pursuant  to  the  Fifth  Article  of  the  Ori- 
ginal Constitution. 

[Article  I.]* 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise 
thereof;  or  abridging  the  freedom  of  speech,  or  of  the 
press;  or  the  right  of  the  people  peaceably  to  assemble, 
and  to  petition  the  Government  for  a  redress  of  griev- 
ances. 


[Article  II.] 

A  well  regulated  Militia,  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep 
and  bear  Arms,  shall  not  be  infringed. 

•  The  first  ten  amendments  to  the  Constitution  of  the  United  States 
were  proposed  to  the  legislatures  of  the  several  States  by  the  First 
Congress,  on  the  25th  of  September,  1789.  They  were  ratified  by  the 
following  States,  and  the  notifications  of  ratification  by  the  governors 
thereof  were  successively  communicated  by  the  President  to  Congress: 
New  Jersey,  November  20,  1789;  Maryland,  December  19,  1789; 
North  Carolina,  December  22,  1789;  South  Carolina,  January  19,  1790; 
New  Hampshire,  January  25,  1790;  Delaware,  January  28,  1790; 
Pennsylvania,  March  10,  1790;  New  York,  March  27,  1790;  Rhode 
Island,  June  15,  1790;  Vermont,  November  3,  1791,  and  Virginia, 
December  15,  1791.  There  is  no  evidence  on  the  journals  of  Congress 
that  the  legislatures  of  Connecticut,  Georgia,  and  Massachusetts 
ratified  them. 


Madison's  Debates  in  Federal  Convention     143 
[Article  III.] 

4 

No  Soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house,  without  the  consent  of  the  Owner,  nor  in 
time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 

[Article  IV.] 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated,  and  no 
Warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  Oath  or  affirmation,  and  particularly  describ- 
ing the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 

[Article  V.] 

No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  Grand  Jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  Militia,  when  in 
actual  service  in  time  of  War  or  public  danger;  nor 
shall  any  person  be  subject  for  the  same  offence  to  be 
tT^ice  put  in  jeopardy  of  life  or  limb;  ror  shall  be 
compelled  in  any  criminal  case  to  be  a  witness  against 
himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  shal'  private  property 
be  taken  for  public  use,  without  just  compensation. 

[Article  VI.] 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of 


i 


144     Madison's  Debates  in  Federal  Convention 

the  nature  and  cause  ol  the  accusation;  to  be  confronted 
with  the  witnesses  against  him;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  und  to 
have  the  Assistance  of  Counsel  for  his  defence. 

[Article  VII.] 
In  suits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved,  and  no  fact  tried  by  a  jury, 
shall  be  otherwise  re-examined  in  any  Court  of  the 
United  States,  than  according  to  the  rules  of  the  com- 
mon law. 

[Article  VIII.] 
Excessive  bail  shall  not  be  required,  nor  excessive 
fines    imposed,    nor    cruel    and   unusual    punishments 
inflicted. 

[Article  IX.] 
The   enumeration   in   the   Constitution,   of   certain 
rights,  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people. 

[Article  X.] 
The  powers  not  delegated  to  the  United  States  by 
fhe  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people. 

Article  XL* 
The  Judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  In  law  or  equity,  com- 

•  The  eleventh  amendment  to  the  Constitution  of  the  United  States 
was  proposed  to  the  legislatures  of  the  several  States  by  the  Third 
Congress  on  the  5th  of  March,  1794;  and  was  declared  in  a  message 
from  the  President  to  Congress,  dated  the  8th  of  January,  1798,  to 
have  been  ratified  by  the  legislatures  of  three-fourths  of  the  States. 


And  a  More  Perfect  Society  of  Nations     145 

menced  or  prosecuted  against  one  of  the  United  States 
by  Citizens  of  another  Stafe,  or  by  Citizens  or  Sub- 
jects of  any  Foreign  State. 

ARTiCLt;  XII.* 
The  electors  shall  meet  in  their  respective  states  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
state  with  themselves;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  Presi- 
dent, and  of  all  persons  voted  for  as  Vice-President, 
and  of  the  number  of  votes  for  each,  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  scat 
of  the  government  of  the  United  States,  directed  to  the 
President  of  the  Senate; — The  President  of  the  Senate 
shall,  in  presence  of  the  Senate  and  House  of  Represen- 
tatives, open  all  the  certificates  and  the  votes  shall 
then  be  counted; — The  person  having  the  greatest 
number  of  votes  for  President,  shall  be  the  President, 
if  such  number  be  a  majority  of  the  whole  number  of 
Electors  appointed;  and  if  no  person  have  such  major- 
ity, then  from  the  persons  having  the  highest  numbers 
not  exceeding  three  on  the  list  of  those  voted  for  as 
President,  the  House  of  Representatives  shall  choose 
immediately,  by  ballot,  the  President.  But  in  choosing 
the  President,  the  votes  shall  be  taken  by  states,  the 
representation   from   each   state  having  one  vote;   a 

•The  twelfth  amendment  to  the  Constitution  of  the  United  States 
was  proposed  to  the  legislatures  of  the  several  States  by  the  Eighth 
Congress,  on  the  12th  of  December,  1803,  in  lieu  of  the  original  third 
paragraph  of  the  first  section  of  the  second  article;  and  was  declared 
in  a  proclamation  of  the  Secretary  of  State,  dated  the  25th  of  Septem- 
ber, 1804,  to  have  been  ratified  by  the  legislatures  of  three-fourths  of 
the  States. 


146     Madison's  Debates  in  Federal  Convention 


a' 
t. 


quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  states,  and  a  majority 
of  all  the  states  shall  be  necessary  to  a  choice.  And 
if  the  House  of  Representatives  shall  not  choose  a 
President  whenever  the  right  of  choice  shall  devolve 
upon  them,  before  the  fourth  day  of  March  next  fol- 
lowing, then  the  Vice-President  shall  act  as  President, 
as  in  the  case  of  the  death  or  other  constitutional  dis- 
ability of  the  President. — The  person  having  the  great- 
est number  of  votes  as  Vice-President,  shall  be  the 
Vice-President,  if  such  number  be  a  majority  of  the 
whole  number  of  Electors  appointed,  and  if  no  person 
have  a  majority,  then  from  the  two  highest  numbers 
on  the  list,  the  Senate  shall  choose  the  Vice-President; 
a  quorum  for  the  purpose  shall  consist  of  two-thirds 
of  the  whole  number  of  Senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice.  But  no 
person  constitutionally  ineligible  to  the  office  of  Presi- 
dent shall  be  eligible  to  that  of  Vice-President  of  the 
United  States. 


Article  XIII.* 

Sfxtion  I.  Neither  slavery  nor  involuntary  servi- 
tude, except  as  a  punishment  for  crime  whereof  the 
party  shall  have  been  duly  convicted,  shall  exist  within 
the  United  States,  or  any  place  subject  to  their  juris- 
diction. 

Section  2.  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation. 

•The  thirteenth  amendment  to  the  Constitution  of  the  United  States 
was  proposed  to  the  legislatures  of  the  several  States  by  the  Thirty- 
eighth  Congress,  on  the  ist  of  February,  1865,  and  was  declared,  in 
a  proclamation  of  the  Secretary  of  State,  dated  the  i8th  of  December, 
1865,  to  have  been  ratified  by  the  legislatures  of  twenty-seven  of  the 
thirty-six  States. 


And  a  More  Perfect  Society  of  Nations     147 

Article  XIV.* 

Section  i.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immun- 
ities of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in  each 
State,  excluding  Indians  not  taxed.  But  when  the  right 
to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice-President  of  the  United  States, 
Representatives  in  Congress,  the  Executive  and  Judi- 
cial officers  of  a  State,  or  the  members  of  the  Legisla- 
ture thereof,  is  denied  to  any  of  the  male  inhabitants  of 
such  State,  being  twenty-one  years  of  age,  and  citizens 
of  the  United  States,  or  in  any  way  abridged,  except  for 
participation  in  rebellion,  or  other  crime,  the  basis  of 
representation  therein  shall  be  reduced  in  the  propor- 
tion which  the  number  of  such  male  citizens  shall  bear 
to  the  whole  number  of  male  citizens  twenty-one  years 
of  age  in  such  State. 

Section  3.  Xo  person  shall  be  a  Senator  or  Repre- 
sentative in  Congress,  or  elector  of  President  and  Vice- 
President,  or  hold  any  office,  civil  or  military,  under 

•The  fourteenth  amendment  to  the  Constitution  of  the  United 
States  was  proposed  to  the  legislatures  of  the  several  States  by  the 
Thirty-ninth  Congress,  on  the  i6th  of  June,  1866,  and  was  declared, 
in  a  proclamation  of  the  Secretary  of  State,  dated  the  28th  of  July, 
1S68,  to  have  been  ratified  by  the  legislatures  of  thirtv  of  the  thirty- 
six  States. 


I. 


148     Madison's  Debates  in  Federal  Convention 

the  United  States,  or  under  any  State,  who,  having 
previously  taken  an  oath,  as  a  member  of  Congress,  or 
as  an  officer  of  the  United  States,  or  as  a  member  of 
any  State  legislature,  or  as  an  executive  or  judicial 
officer  of  any  State,  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort 
to  the  enemies  thereof.  But  Congress  may  by  a  vote 
of  two-thirds  of  each  House,  remove  such  disability. 

Slctiox  4.  The  validity  of  the  public  debt  of  the 
United  States  authorized  by  law,  including  debts 
incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall 
not  be  questioned.  But  neither  the  United  States  nor 
any  State  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emanci- 
pation of  any  slave;  but  all  such  debts,  obhgations  and 
claims  shall  be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to 
enforce,  by  appropriate  legislation,  the  provisions  of 
this  article. 

Article  XV.* 

Section  i.  The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of  race,  color, 
or  previous  conditions  of  servitude — 

Section  2.  The  Congress  shall  have  power  to 
enforce  this  article  by  appropriate  legislation. 

•  The  fifteenth  amendment  to  the  Constitution  of  the  United  States 
was  proposed  to  the  legislatures  of  the  several  States  by  the  Fortieth 
Congress  on  the  27th  of  February,  1869,  and  was  declared,  in  a 
proclamation  of  the  Secretary  of  State,  dated  March  30,  1870,  to  have 
been  ratified  by  the  legislatures  of  twenty-nine  of  the  thirty-seven 
States. 


And  a  More  Perfect  Society  of  Nations     149 

Article  XVI.* 

The  Congress  shall  have  power  to  lay  and  collect 
taxes  on  incomes,  from  whatever  source  derived,  with- 
out apportionment  among  the  several  States,  and  with- 
out regard  to  any  census  or  enumeration. 

Articli:  XVI  I.t 

'"  The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  elected  by  the  people 
thereof,  for  six  years;  and  each  Senator  shall  have  one 
vote.  The  electors  in  each  State  shall  have  the  quali- 
fications requisite  for  electors  of  the  most  numerous 
branch  of  the  State  Legislatures. 

'-'  When  vacancies  happen  in  the  representation  of 
any  State  in  the  Senate,  the  executive  authority  of  such 
State  shall  issue  writs  of  election  to  fill  such  vacancies: 
Provided,  That  the  legislature  of  any  State  may 
empower  the  executive  thereof  to  malic  temporary 
appointment  until  the  people  fill  the  vacancies  by  elec- 
tion as  the  legislature  may  direct. 

"'  This  amendment  shall  not  be  so  construed  as  to 
affect  the  election  or  term  of  any  Senator  chosen  before 
it  becomes  valid  as  part  of  the  Constitution. 

•  The  sixteenth  amendment  to  the  Constitution  of  the  Inited  States 
was  proposed  to  the  legislatures  of  the  several  States  by  the  Sixty-first 
Congress  on  the  12th  of  July,  1909,  and  was  declared,  in  an  announce- 
ment by  the  Secretary  of  State,  dated  February  25,  1913,  to  have 
been  ratified  by  the  legislatures  of  thirty-eight  of  the  forty-eight  States. 

tThe  seventeenth  amendment  to  the  Constitution  of  the  United 
States  was  proposed  to  the  legislatures  of  the  several  States  by  the 
Sixty-second  Congress  on  the  16th  day  of  Mav,  1912,  and  was  declared, 
m  an  announcement  by  the  Secretary  of  State,  dated  May  ji,  191J,' 
to  have  been  ratified  by  the  legislatures  of  thirty-six  of  the  forty-eight 
States. 


